•    LIBRARY     j 

UNIVSRSITYOF 
CALIFORNIA 

SAN  DIEGO    J 


THE 


RISE  AND  PROGRESS 


BV 

E.  S.  CEBASY,  M.A., 

BAKRISTEH-AT-U4  W  • 

PROFESSOR   OF    HISTORY    IN    UNIVERSITY    COLLEGE,    LONDOCV  ^ 
LATE    FELLOW    OF    KING'S   COLLEOR,    CAMBRILXJK. 


REVISED,   AND   WITH   ADDITIONS. 


NEW    YORK: 
D.    APPLETON     AND     COMPANY, 

1,    8,    AND    5    BOND    STREET. 
1891. 


DEDICATED  TO 

HENRY  PEARSON,  ESQ.,  M.A., 

Or    THE    KIDDLE   TEMPLE,    BARRISTKR-AT-LAW, 
flf    HIS    FRIEND, 

THE  AUTHOR. 


PREFACE. 


IK  1848  I  prepared  and  published  a  small  pamphlet, 
called  "  The  Text  Book  of  the  Constitution/'  in  which 
were  arranged  the  texts  of  Magna  Carta,  the  Petition 
of  Bight,  and  the  Bill  of  Eights,  with  historical  com- 
ments, and  with  remarks  on  the  People's  Charter  and 
other  political  topics  of  that  year.  Independently  of 
its  politics,  that  pamphlet  has  been  found  useful  as  an 
historical  compilation  ;  but  the  extent  to  which  its 
latter  pages  were  occupied  with  political  discussions, 
made  me  unwilling  either  to  employ  it  myself  or  to  see 
it  employed  by  others  in  education.  I  do  not  wish  to 
disavow  any  of  the  opinions  which  I  expressed  in  it, 
but  a  teacher  of  History  has  no  right  to  avail  himself 
of  the  position  in  which  he  stands  towards  his  pupils, 
for  the  purpose  of  training  up  broods  of  young  Tories, 
Whigs,  or  Radicals,  according  to  his  own  party  pre- 
dilections. I  therefore  intended  to  prepare  an  edition 


VI  PREFACE. 

of  that  little  treatise,  which  should  deal  only  with  the 
Past,  and  in  which  the  spirit  of  party  pamphlet  should 
be  entirely  got  rid  of.  But  the  work  has  grown  under 
the  pen ;  and  I  have  been  led  to  make  additions, 
omissions,  and  re-arrangements,  which  have  rendered 
it  a  distinct  book,  and  one  to  which  the  name  it  now 
bears  is  much  more  applicable  than  the  title  of  its 
predecessor  would  have  been. 

Except  in  the  earlier  part  of  the  volume,  I  have 
entirely  avoided  ecclesiastical  topics.  I  have  found  it 
impossible  to  deal  with  them,  without  mingling  in 
some  of  the  hottest  controversies  of  the  present  day. 

My  obligations  to  Guizot,  Palgrave,  Kemble,  La- 
tham, Worsaae,  Bowyer,  Warren,  Macculloch,  For- 
syth,  Pashley,  and,  above  all,  to  Hallam,  are  self-ap- 
parent in  these  pages.  Wherever  I  have  found  truths 
well  stated  by  others,  I  have  preferred  useful  compi 
lation  to  worthless  novelty. 

E.  S.  CREASY. 

University  College,  London, 
October  18,  1851 


PREFACE 

TO   THIRD   EDITION. 


I  HAVE  tried  to  show  a  fit  sense  of  the  public  favour 
which  this  little  book  has  received,  by  correcting  it 
carefully,  and  by  making  such  useful  additions  as  I 
could  blend  in  it  without  running  into  party  politics, 
and  without  turning  it  into  that  proverbial  evil,  Meya 
8ift\Lov.  The  account  of  the  present  distribution  of 
political  power  in  England  will  be  found  to  be  now 
much  fuller  than  it  was  in  the  preceding  editions  ; 
and  I  have  joined  with  it  some  comments  on  our  old 
English  principle  of  Local  Self-government  in  Local 
matters  ;  a  subject  to  which  I  had  not  previously  given 
due  prominence. 


E.  S.  CREASY 


2,  Mitre  Court  Chambers,  Temple, 
Decembtr  VOtk,  1855. 


CONTENTS. 


CHAPTER  L 

Meaning  of  the  term  "English  Constitution."— Is  there  an  English  Constitution?— 
Primary  Principles  of  the  Constitution. — Magna  Carta,  the  Petition  of  Right,  and 
the  Bill  of  Rights  form  its  Code.— General  Ignorance  of  these  Statutes. — Scope  of 
the  present  Work. — Constitutional  Law  of  Progress. — How  to  learn  the  Constitu- 
tion.— Classification  of  Constitutional  Functions. — Importance  of  studying  Leading 
Scenes  in  History.— History  of  the  Elements  of  our  Nation,  why  material. — Exclu- 
sion of  Party  Politics  .......  1 

CHAPTER  II. 

Onr  Constitution  coeval  with  onr  Nationality. — Thirteenth  century  the  Date  when 
each  commences. — The  Four  Elements  of  our  Nation. — The  Saxon,  *.  «.  the  Ger- 
manic, the  chief  Element — Parts  of  the  Continent  whence  our  Germanic  Ancestors 
came. — Their  Institutions,  Political,  Social,  and  Domestic. — Date  of  the  Saxon  Im- 
migrations into  this  Island.— What  Population  did  they  find  here?— The  British 
Element  of  our  Nation,  Romanized  Celtic. — Primary  Character  and  Institutions  of 
the  British  Celts. — Effect  of  Roman  Conquests. — How  far  did  the  Saxous  extermi- 
nate or  blend  with  the  Britons? — Evidence  of  Language.  ...  IS 

CHAPTER  IIL 

Conversion  of  the  Anglo-Saxons. — Its  civilizing  Effects. — They  occupy  the  Roman 
Townd. — England  attacked  by  the  Danes. — The  third,  i.  e.  the  Danish,  Element 
of  our  Nation. — Danish  Institutions  and  Customs. — Ferocity  of  their  Attack  on 
England. — Extent  of  their  chief  Settlements  here. — Evidence  of  .Danish  Names  of 
Places  and  Persons. — Alfred  rescues  Saxon  England  from  them. — The  Danish 
blends  with  the  Saxon  Element — Fusion  of  the  first  three  Elements  of  our  Na- 
tion.   81 

CHAPTER  IV. 

Anglo-Saxon  Institutions. — Classes  of  the  Vopnlation. — Thralls,  Ceorls,  Thanes.— 
Townships. — Hundreds. — Tytbings.— Frank  pledge. — Lords. — The  Were.— The  Soo- 
men.— The  Towns.— The  Witenagemote.— The  King.— The  Bishops.— The  Clergy. 
— The  Poor.— Deterioration  of  the  Saxon  Polity  before  the  Conquest  .  89 


CHAPTER  V. 

The  Norman  Element — Different  from  the  Danish. — Rolf  the  Ganger's  Conquest 
of  Neustria. — State  of  Civilization  in  France. — Characteristics  of  the  Normans. — 
Their  brilliant  Qualities.— Their  Oppression  of  the  Peasantry.  .  .  59 


X  CONTENTS. 

CHAPTER  VI. 

The  Norman  Conquest. — Extent  of  the  Changes  which  It  caused. — Numerical  Acconnt 
of  the  Norman  and  Anglo-Saxon  Populations. — Amount  of  Loss  of  Life  caused  by 
the  Conquest — Probable  Number  of  the  Normans  and  other  New-comers  from 
Continental  Europe. — Did  the  Population  increase  in  the  Century  and  a  half  pre- 
ceding the  signing  of  Magna  Carta? — The  Miseries  of  Stephen's  Reign. — Period  of 
Tranquillity  under  Henry  IL — Probable  Amount  of  Population  in  1215.  .  &S 

CHAPTER  VIL 

General  View  of  the  Feudal  System. — Meaning  of  the  terms  "  Feudal "  and  "  Allo- 
dial"— General  Sketch  of  the  Progress  of  a  Germanic  Settlement  in  a  Roman 
Province. — Causes  of  Feudalism. — Progress  of  "  Sub-infendation." — Aristocratic 
Character  of  Feudalism. — Its  Oppressiveness  to  the  Commonalty. — Its  brighter 
Features.  ....  .....  63 

CHAPTER  VIIL 

Distinction  between  Feudalism  as  developed  in  England,  and  Feudalism  as  generally 
developed  on  the  Continent — How  far  did  it  exist  among  the  Saxons  before  the 
Conquest;  how  far  among  the  Normnns f— Character  of  William  the  Conqueror. 
—Feudalism  which  he  introduced. — His  checks  on  the  Baronial  Power. — Great 
Authority  of  the  First  Anglo-Norman  Kings.  .....  78 

CHAPTER  IX. 

Btate  of  tbo  Mass  of  the  English  Nation  at  the  Commencement  of  the  Thirteenth 
Century. — The  Peasantry. — Villeinage :  its  Incidents :  its  probable  Origin  and  Ex- 
tent ;  and  the  Modes  of  becoming  emancipated  from  it — State  of  the  Lower  Classes 
In  Towns. — State  of  the  Middle  and  Upper  Classes. — The  various  Tenures  of  Land. 
— State  of  the  Boroughs  after  the  Conquest — Their  partial  Recovery  of  their 
Liberties. 85 

CHAPTER  X  » 

Evil  Character  of  King  John. — Its  Importance  to  our  History. — Fortunate  Loss  of 
Normandy. — John's  Quarrels  with  his  Clergy  and  with  the  Pope. — The  Interdict 
— The  Excommunication. — John's  abject  Submission  to  the  Pope. — Return  of  Arch- 
bishop Langton  to  England. — His  patriotic  Character. — He  checks  the  King. — 
King's  Oath  to  redress  Wrongs. — His  repeated  Acts  of  Tyranny. — Council  of  the 
Barons. — Archbishop  Langton  produces  the  Charter  of  Henry  I. — Nature  of  this 
Charter,  and  its  Value. — Demands  of  the  Barons  on  the  King. — Vain  Intervention 
of  the  Pope. — Firmness  of  Archbishop  Langton. — Strength  of  the  National  Party. 
— Runnyinede.— Articuli  Carta.— The  Grant  uf  the  Great  Charter. .  .  98 

CHAPTER  XI. 

Magna  Carta.— General  Distribution  of  its  Clauses.— Text  of  the  Great  Charter,  and 
Comments..  ...  .  ....  118 

CHAPTER  XIL 

Renewals  of  the  Great  Charter  in  Henry  the  Third's  Reign. — The  Charter  as  confirmed 
by  Edward  L  and  subsequent  Kings. — The  Statute  Conflrmatio  Cartarum. — Ail 
Taxation  without  consent  of  Parliament  made  illegal  .  .  148 

CHAPTER  X1IL 

The  Principles  of  the  Constitution  traced  In  the  Charter. — Kingship  in  England- 
Its  powers  and  limitations. — Parliament — Origin  of  the  House  of  Commons.— Of 
the  two  branches  of  the  House  of  Commons. — Trial  by  Jury. — Writ  of  Habeas  Cor- 
pus.— Origin  and  value  of  these  Constitutional  Rights.  ...  160 


CONTENTS.  XI 


CHAPTER  XIV. 

Progress  of  the  Constitution  during  the  Eelgns  of  the  ten  last  Plantagenet  Kings,— 
Growing  Importance  of  the  House  of  Commons. — Qualifications  of  Members  and 
Electors. — Prerogatives  of  the  Crown. — State  of  the  Population.—  Jurors.— Boroughs 
—Number  of  Electors.  ........  212 

CHAPTER  XV. 

State  of  the  Constitution  under  the  Tudors. — Revival  of  Spirit  In  the  House  of  Com- 
inons. — Weak  but  arbitrary  Character  of  the  first  two  Stuart  Kings. — Charles  I.  sin- 
cere, but  an  Aggressor  on  the  Constitution. — The  Petition  of  Right .  .  24T 

CHAPTER  XVL 

rhe  Restoration. — Affection  of  the  English  Nation  for  their  old  Institutions. — Effects 
of  the  Period  of  Revolution. — Military  Tenures  abolished. — Habeas  Corpus  Act — 
Custom  of  Fining  Jurors  for  their  Verdicts  pronounced  Illegal. — Revolution  of 
16S8.— The  Bill  of  Rights.— The  Act  of  Settlement— Kingship  in  England  since  the 
Revolution. — Its  Limitations. — Its  enduring  Value. — House  of  Lords. — Attempt  to 
check  Creation  of  Peers.— Benefits  of  the  House  of  Peers  to  the  Country. — House 
of  Commons. — Borough  Members. — Rotten  Borougha — Reform  Bill  .  26T 

CHAPTER  XVIL 

Number  of  Population. — Distribution  of  Political  Power. — The  Crown. — Number  of 
Parliamentary  Electors. — Education. — Property. — Exercise  of  Political  Powers  In 
matters  not  Parliamentary. — Local  Self-government — Property  Qualification. — In- 
fluence of  Public  Opinion. — Right  of  Free  Discussion,  and  Liberty  of  th* 
.  814 


THE  RISE  AND  PROGRESS 


ENGLISH  CONSTITUTION. 


CHAPTER  I. 


Meai  iag  of  the  term  "English  Constitution."— Is  there  an  English  Constitution?— 
Primary  Principles  of  the  Constitution. — Magna  Carta,  the  Petition  of  llisrht,  and 
the  Bill  of  Rights  form  its  Code. — General  Ignorance  of  these  Statutes. — Scope  of 
the  present  Work. — Constitutional  Law  of  Progress. — How  to  learn  the  Constitu- 
tion.— Classification  of  Constitutional  Functions.— Importance  of  studying  Leading 
Scenes  in  History.— History  of  the  Elements  of  our  Nation,  why  material. — Exclu- 
sion of  Party  Politics. 

WHATEVER  may  be  thought  of  the  execution  of  this 
work,  I  have  little  fear  of  being  censured,  so  far  as 
regards  the  design.  An  attempt  to  arrange  in  a  sim- 
ple form,  and  to  place  before  the  public,  in  a  few  easily 
accessible  pages,  the  great  principles  of  our  Consti- 
tution,— to  prove  their  antiquity,  to  illustrate  their 
development,  and  to  point  out  their  enduring  value, 
will  surely,  in  times  like  the  present,  not  be  discour- 
aged as  blamable  ;  and,  in  the  strange  dearth  of  use- 
ful treatises  on  this  important  topic,  it  will  hardly  bo 
Blighted  as  superfluous. 

It  is,  in  the  first  place,  necessary  to  have  a  clear 
anderstanding  of  what  we  mean  when  we  talk  about 


2  RISE    AND   PROGRESS 

"  the  English  Constitution."  Few  terms  in  our  lan- 
guage have  been  more  laxly  employed  :  and  so  uncer- 
tain is  the  knowledge,  so  very  vague  are  the  ideaa 
which  many  have  of  the  constitution  of  their  country, 
that  when  the  opponent  of  a  particular  measure  or  a 
particular  system  of  policy  cries  out  that  it  is  uncon- 
stitutional, the  complaint  generally  means  little  more 
than  that  the  matter  so  denounced  is  something  which 
the  speaker  dislikes. 

Still,  the  term,  "  the  English  Constitution,"  is 
susceptible  of  full  and  accurate  explanation  :  though 
it  may  not  be  easy  to  set  it  lucidly  forth,  without  first 
investigating  the  archeology  of  our  history,  rather 
more  deeply  than  may  suit  hasty  talkers  and  super- 
ficial thinkers,  but  with  no  larger  expenditure  of  time 
and  labour,  than  every  member  of  a  great  and  free 
State  ought  gladly  to  bestow,  in  order  that  he  may 
rightly  comprehend  and  appreciate  the  polity  and  the 
laws  in  which,  and  by  which  he  lives,  and  acts,  and 
has  his  civic  being. 

Some  furious  Jacobins,  at  the  close  of  the  last 
century,  used  to  clamour  that  there  was  no  such  thing 
as  the  English  Constitution,  because  it  could  not  be 
produced  in  full  written  form,  like  that  of  the  United 
States,  or  like  those  with  which  Sieyes  stocked  the 
pigeon-holes  of  his  bureau,  to  suit  the  varying  phases 
of  the  first  years  of  the  French  Kevolution.  The 
eame  cavil  is  occasionally  repeated  in  our  own  times. 
In  order  to  meet  it,  there  is  no  occasion  to  resort  to 
the  strange  dogma  of  Burke,  that  our  ancestors,  at 
the  Revolution  of  1688,  bound,  and  had  a  right  to 
bind,  both  themselves  and  their  posterity  to  perpetual 
adherence  to  the  exact  order  of  things  then  establish- 
ed :  nor  need  we  rely  solely  on  the  eulogies,  which 
foreign  as  well  as  native  writers,  a  hundred  years  ago, 
used  to  heap  upon  the  British  constitution.  Those 
panegyrics,  whether  exaggerated  or  not,  were  to  a 


OF    THE    CONSTITUTION.  3 

great  extent  supported  by  reasonings  and  compari- 
sons, which  are  now  wholly  inapplicable.  But,  with- 
out basing  his  political  creed  on  them,  an  impartial 
and  earnest  investigator  may  still  satisfy  himself  that 
England  has  a  constitution,  and  that  there  is  ample 
cause  why  she  should  cherish  it.  And  by  this  it  is 
meant,  that  he  will  recognise  and  admire,  in  the  his- 
tory, the  laws,  and  the  institutions  of  England,  cer- 
tain great  leading  principles,  which  have  existed  from 
the  earliest  period  of  our  nationality  down  to  the  pres- 
ent time  ;  expanding  and  adapting  themselves  to  the 
progress  of  society  and  civilization  ;  advancing  and 
varying  in  development,  but  still  essentially  the  same 
in  substance  and  in  spirit. 

These  great  primeval  and  enduring  principles  are 
the  principles  of  the  English  Constitution.  And  we 
are  not  obliged  to  learn  them  from  imperfect  eviden- 
ces or  precarious  speculation  ;  for  they  are  imperisha- 
bly  recorded  in  the  Great  Charter,  and  in  the  Charters 
and  Statutes  connected  with  and  confirmatory  of 
Magna  Carta.  In  Magna  Carta  itself,  that  is  to  say, 
in  a  solemn  instrument  deliberately  agreed  on  by  the 
king,  the  prelates,  the  great  barons,  the  gentry,  the 
burghers,  the  yeomanry,  and  all  the  freemen  of  the 
realm,  at  an  epoch  which  we  have  a  right  to  consider 
the  commencement  of  our  nationality,  and  in  the 
statute  entitled  Confirmatio  Cartarum,  which  is  to  be 
read  as  a  supplement  to  Magna  Carta,  we  can  trace 
these  great  principles,  some  in  the  germ,  some  more 
fully  revealed.  And  thus,  at  the  very  dawn  of  the 
history  of  the  present  English  nation,  we  behold  the 
foundations  of  our  great  political  institutions  impcr- 
ishably  laid. 

These  great  primeval  and  enduring  principles  of 
our  Constitution  are  as  follows  : — 

The  government  of  the  country  by  an  hereditary 
sovereign,  ruling  with  limited  powers,  and  bound  to 


4  RISE   AND   PBOGKESS 

Buininon  and  consult  a  parliament  of  the  whole  realnij 
comprising  hereditary  peers  and  elective  representa- 
tives of  the  commons. 

That  without  the  sanction  of  parliament  no  tax  of 
any  kind  can  be  imposed  ;  and  no  law  can  be  made, 
repealed,  or  altered. 

That  no  man  be  arbitrarily  fined  or  imprisoned, 
that  no  man's  property  or  liberties  be  impaired,  and 
that  no  man  be  in  any  way  punished,  except  after  a 
lawful  trial. 

Trial  by  jury. 

That  justice  shall  not  be  sold  or  delayed. 

These  great  constitutional  principles  can  ail  be 
proved,  either  by  express  terms,  or  by  fair  implica- 
tion, from  Magna  Carta,  and  its  above-mentioned 
supplement. 

Their  vigorous  development  was  aided  and  attest- 
ed in  many  subsequent  statutes,  especially  in  the 
Petition  of  Eight  and  the  Bill  of  Eights  ;  in  each  of 
which  the  English  nation,  at  a  solemn  crisis,  solemnly 
declared  its  rights,  and  solemnly  acknowledged  its 
obligations  : — two  enactments  which  deserve  to  be 
cited,  not  as  ordinary  laws,  but  as  constitutional  com- 
pacts, and  to  be  classed  as  such  with  the  Great  Char- 
ter, of  which  they  are  the  confirmers  and  the  expo- 
nents. 

Lord  Chatham  called  these  three  "  The  Bible  of 
the  English  Constitution,"  to  which  appeal  is  to  be 
made  on  every  grave  political  question.  The  great 
statesman's  advice  is  still  sound.  It  deserves  to  be 
considered  by  subjects  as  well  as  by  princes  ;  by  pop- 
ular leaders  without  the  walls  of  parliament,  as  well 
as  by  ministers  within  them. 

And,  indeed,  it  is  not  only  to  those  who  are  prom- 
inently engaged  in  political  struggles,  but  to  all  who 
would  qualify  themselves  for  doing  their  duty  to  their 
country, — to  all  who  are  conscious  of  what  Arnold  has 


OF    THE    CONSTITUTION.  5 

called  "  the  highest  earthly  desire  of  the  ripened 
mind,  the  desire  of  taking  an  active  share  in  the 
great  work  of  government," — that  these  texts  of  our 
Constitution  ought  to  be  the  objects  of  peculiar 
study  ;  in  order  that,  first,  we  may  learn  from  them 
what  our  Constitution  really  is,  and  whether  it  de- 
serves to  be  earnestly  upheld  by  us  as  a  national  bless- 
ing, or  ought  to  be  looked  on  as  an  effete  incum- 
brance,  whose  euthanasia  we  should  strive  to  acceler- 
ate ;  and,  secondly,  that  when  we  have  convinced 
ourselves  of  its  merit,  we  may  be  able  to  test  pro- 
posed measures  by  their  conformity  with  or  their  hos- 
tility to  its  principles. 

It  is  painfully  strange  to  observe  how  few  even  of 
well  educated  Englishmen  possess,  or  have  so  much  as 
ever  read  these  three  Great  Statutes.  Magna  Carta, 
in  particular,  is  on  everybody's  lips  but  in  nobody's 
hands  ;  and,  though  perpetually  talked  of,  is  generally 
talked  of  in  utter  ignorance  of  its  contents,  beyond  a 
vague  impression  that  it  prohibits  arbitrary  taxation 
and  arbitrary  imprisonment,  and  that  it  is  in  favour 
of  Trial  by  Jury.  The  original  charter  of  King  John 
is  not  even  printed  in  the  common  editions  of  the 
statutes.  With  respect  to  the  two  other  great  laws 
which  Lord  Chatham  ranks  with  Magna  Carta,  name- 
ly, the  Petition  of  Eight,  and  the  Bill  of  Eights,  it 
may  safely  be  asserted  that  hundreds  have  never  read 
a  line  of  them,  who  would  be  justly  indignant  if  we 
were  to  doubt  their  familiarity  with  the  Attic  legisla- 
tion of  Cleisthenes,  or  with  the  Eoman  reform  bills  of 
Terentillus  and  Licinius  Stolo. 

The  texts  of  Magna  Carta,  the  Petition  of  Eight, 
and  the  Bill  of  Eights  will  here  be  laid  before  the 
reader  ;  and  I  have  endeavoured  to  make  the  perusal 
of  them  more  interesting  and  more  useful,  by  not 
only  giving  explanations  of  the  legal  and  archeeologi- 
cal  terms  which  they  contain,  but  by  also  adding 


0  RISE   AND   PROGRESS 

historical  introductions  and  comments.  Unless  this 
is  done,  the  spirit  of  the  Constitution  cannot  be  per- 
ceived ;  and,  if  the  letter  of  the  Constitution  deserves 
admiration,  still  more  does  its  spirit.  It  is  only  thus 
that  some  of  its  essential  characteristics  can  be  dis- 
cerned ;  and,  by  studying  it  thus,  the  more  we  con- 
vince ourselves  of  its  reality  and  its  antiquity,  the 
more  confident  shall  we  become  of  its  future  durabili- 
ty. For,  the  same  earnest  and  long- continued  stu- 
dies, which  teach  the  historical  inquirer  to  believe  in 
and  to  venerate  the  great  principles  of  the  English 
Constitution,  also  display  to  him  the  workings  of  its 
normal  law  of  progress,  its  plastic  power  of  self-ame- 
lioration and  expansion,  through  which  we  may  hope 
to  see  all  growing  exigencies  of  modern  times  sup- 
plied, not  only  without  danger,  but  with  aid  and 
corrolx>ration  to  the  fundamental  institutions  of  ages 
past. 

The  student  of  the  English  Constitution  ought 
not  only  to  be  familiar  with  the  chief  portions  of 
Magna  Carta,  the  Petition  of  Bight,  and  the  Bill  of 
Rights  ;  but  he  ought  also  to  have  a  clear  knowledge 
and  an  appreciative  feeling  of  the  circumstances  un- 
der which  each  of  the  three  primary  laws  came  into 
existence  ;  of  the  immediate  purposes  for  which  each 
was  framed  ;  and  of  the  enduring  general  benefit  to 
the  nation  which  each  was  also  designed  to  secure. 
He  ought  to  trace  and  examine  the  development  of 
the  great  principles  which  these  statutes  embody ; 
and  his  especial  attention  should  be  directed  to  such 
other  statutes  as  confirm,  extend,  or  explain  the  lead- 
ing enactments.  He  ought  also  to  watch  how  far  the 
constitutional  rights,  which  these  laws  sanction  and 
provide,  have  been  extended  to  all  members  of  the 
community.  This  is  to  be  carefully  noted,  not  only  in 
respect  of  the  protections  from  positive  wrong,  which 
the  Constitution  affords,  but  also  in  respect  of  the 


OF   THE    CONSTITUTION.  7 

other  benefits  which  it  offers.  We  must  observe  what 
classes  and  what  numbers  of  the  population  have 
from  time  to  time  taken  part  in  the  active  func- 
tions of  the  government  of  the  State.  And  it  is 
always  to  be  remembered  that  the  active  functions  of 
political  government  include  not  merely  such  rights 
as  the  right  of  sitting  in  parliament,  the  right  of 
voting  for  members  of  parliament,  and  the  like,  but 
they  include  such  rights  as  the  right  of  eligibility  to 
any  magistracy  or  executive  office,  and  the  right  of 
electing  others  thereto  ;  they  include,  also,  the  right 
of  taking  any  part  in  criminal  or  civil  trials,  as,  for 
example,  the  right  of  acting  as  jurymen.  I  follow 
here  the  greatest  of  all  writers  on  the  subject  of 
human  political  institutions.  Aristotle  classifies  the 
constitutional  functions  of  a  member  of  a  State  under 
these  three  heads  :  1st,  the  Deliberative  ;  2ndly,  the 
Administrative  ;  3rdly,  the  Judicial.* 

We  shall,  necessarily,  in  thus  studying  the  history 
of  our  nation  and  its  institutions,  be  led  to  observe, 
in  connection  with  the  great  primary  principles  that 
have  been  enumerated,  many  supplemental  constitu- 
tional rules  that  have  been  successively  introduced, 
and  gradually  established,  during  the  six  centuries  of 
our  national  existence.  The  amount  of  authority,  to 
which  each  of  these  rules  is  entitled,  may  perhaps 
vary,  according  to  the  weight  of  the  reasons  which 
may  be  found  for  the  origin  and  maintenance  of  each; 
according  to  the  extent  to  which  each  seems  to  carry 
out  the  true  spirit  of  the  primary  principles,  and  also 


*  "EITTI  Sri  rpia  fi6pta  rcav  vaXntilav  iraffSiv,  irepi  £>v  5t7  SfotpeiV  T£» 
(Tirol  Saiof  vofj.a^fTi\v  (Katrrr)  -rb  ffvfj.<ptpov.  <av  e^ovToiv  KaAws,  dya-y/oj  TTJH 
iro\iTtiav  «Xeil/  KoAws,  fai  ras  iroAcre/ay  dAArjAad'  Siafyepftv,  ev  TU>  Sta(pf 
Ofiv  eriffTov  Tovrtav.  *E«TTi  Se  TUV  rpicav  rmntav  tv  fjitv  TI  rb  /3ou\fv6- 
U€ft  ftpl  Ttaf  KoivSiv.  AtvrtpovSf  rj>  irfpl  rav  dp^as  •  TOUTO  Sf  Hartf  tlf 
Set  KC  rii-av  tlva.1  Kvplas'  Kal  Tro'iav  nva  Set  yiyrtfbtu  rrji>  alpeffiv  ainuv, 
Tpi'ro>  it  TI  Tb  8iKa£ov. — Aristot.  Polit.,  lib.  iv.  c.  14. 


8  EISE   AND   PEOGRESS 

according  to  the  length  of  time  by  which  the  exist- 
ence of  each  has  been  hallowed.  But  they  ought  all 
to  be  carefully  noted ;  and  they  all  deserve  the  re- 
spectful attention  even  of  those  who  would  modify 
their  influence,  or  except  particular  cases  from  their 
operation.  The  study  of  their  causes  is  indispensable 
for  a  right  judgment  of  their  effects. 

I  have  endeavoured  to  compile  and  arrange  iii 
these  pages  information  respecting  the  origin,  the 
character,  and  the  progress  of  our  Constitution,  with 
regard  to  all  the  points  of  view,  the  importance  of 
which  I  have  been  indicating.  I  am  far  from  ventur- 
ing, on  this  account,  to  call  this  little  volume  a 
complete  history  of  the  English  Constitution,  but  it 
may  aid  the  student  as  an  introduction  to  other  m^>re 
learned  and  elaborate  treatises  ;  and,  perhaps,  even 
the  well-informed  politician  may  sometimes  find  it 
useful  as  a  manual  for  immediate  reference.  I  believe, 
indeed,  that  with  regard  to  Constitutional  history,  as 
well  as  with  regard  to  general  history,  much  has  been 
done  to  secure  a  present  knowledge  and  a  permanent 
recollection,  when  the  intellect  has  once  thoroughly 
comprehended  and  the  imagination  has  once  vividly 
reproduced  a  small  but  well-chosen  number  of  leading 
scenes  in  the  long  and  complicated  drama.  Such 
scenes  abide  clearly  in  the  memory  when  the  general 
mass  of  the  story  becomes  dim  ;  and,  when  they  so 
abide  in  the  memory,  they  are  valuable,  not  only  by 
reason  of  the  intrinsic  importance  of  their  own  imme- 
diate topics,  but  because  they  serve  us  as  landmarks 
for  an  improved  survey  of  the  whole  subject.  They 
are  also  most  beneficial  in  enabling  us  to  realize  the 
utility  of  the  incidental  information  as  to  particular 
passages  of  history,  which  our  other  studies,  and  even 
our  desultory  reading  for  mere  amusement's  sake, 
continually  throw  in  our  way.  He  who  has  the  know- 
ledge of  certain  great  leading  historical  events  firmly 


OF    THE    CONSTITUTION.  9 

'mplanted  in  his  mind,  has  in  his  mind  a  set  of  bases, 
between  and  round  which  he  naturally  fixes  and 
groups  all  the  historical  facts  that  he  reads  or  hears 
of.  His  memory  is  thus  continually  refreshed.  Each 
piece  of  new  information  awakens  in  him  intelligible 
and  connected  ideas  ;  and  he  addresses  himself  to  the 
acquisition  of  fresh  facts,  or  to  the  consideration  of 
rival  theories,  with  far  higher  powers  and  advantages, 
than  can  be  possessed  by  the  man,  who  may,  indeed, 
have  read  much  more,  but  who  has  read  without 
selection  and  system  ;  and  whose  mind,  as  to  history, 
must  (to  borrow  a  phrase  of  Dryden)  be  only  full  of 
"  a  confused  mass  of  thoughts,  tumbling  over  one 
another  in  the  dark." 

Attention  is,  therefore,  here  drawn  to  the  acquisi- 
tion of  the  Great  Charter,  the  passing  of  the  Petition 
of  Eight,  and  that  of  the  Bill  of  Eights,  as  leading 
scenes  in  our  Constitutional  history.  The  first  of 
these  has  been  treated  at  far  greater  length  than 
either  of  the  other  two  ;  both  because  there  is  not 
the  same  opportunity  of  referring  my  readers  to  other 
writers  on  the  subject,  and  because,  as  it  occurs  at 
the  very  opening  of  our  national  history,  a  right 
comprehension  of  it  forms  the  very  foundation  of  our 
Constitutional  knowledge.  This  is  premised,  lest  it 
should  be  thought  that  the  investigations  of  the 
Constitutional  history  of  each  element  of  our  nation, 
which  are  introduced  before  discussing  the  Great 
Charter  itself,  have  been  foisted  in  here  merely  for  the 
sake  of  inopportunely  parading  ethnological  theories, 
or  of  swelling  the  size  of  this  volume.  The  tenets 
there  brought  forward  are  essential  for  the  fixing  of 
the  corner  stone  of  my  position  respecting  the  English 
Constitution.  I  maintain  that  the  principles  of  our 
Constitution  have  been  in  existence  ever  since  we,  this 
English  nation,  have  been  in  existence.  This  is  to  be 
proved  not  merely  by  quoting  the  Great  Charter,  but 
1* 


10  RISE   AND    PROGRESS 

by  making  good  the  assertion  that  the  epoch  when  the 
Great  Charter  was  granted  is  the  epoch  when  oui 
nationality  commenced.  For  this  purpose  it  is  abso- 
lutely necessary  to  analyze  our  nation,  to  trace  the 
separate  current  of  each  of  its  primary  sources,  and 
to  watch  the  processes  of  their  intermingling.  Per- 
haps I  may  venture  to  hope  that  one  effect  of  study- 
ing our  history  in  this  manner,  may  be  to  give  it  an 
additional  interest,  from  its  evident  connection  with 
our  classical  studies.  The  main  stream  of  our  nation 
is  Germanic  ;  and  he,  who  devotes  himself  to  the 
histories  of  Greece  and  Rome,  will  find  Greek  history 
blending  in  Roman,  and  Roman  blending  in  Ger- 
manic. The  institutions  of  our  Germanic  ancestors 
commanded  the  anxious  interest  of  the  master-minds 
of  ancient  Rome.  Those  same  institutions  are  the 
first  subjects  to  which  the  inquirer  into  our  laws  and 
our  political  organization  must  bend  his  thoughts. 
They  have,  indeed,  been  greatly  modified  by  the  other 
elements  with  which  they  have  been  mingled  here,  but 
they  have  exercised  more  influence  than  any  others. 
The  Germania  of  Tacitus  is  equally  a  hand-book  for 
the  student  of  modern  and  for  the  student  of  ancient 
history.  It  thus  demonstrates  the  unity  of  all  his- 
tory. 

I  hope  that  my  work,  in  its  present  form,  may  be 
useful  to  young  readers,  in  aiding  to  educate  them  for 
the  future  discharge  of  political  duties  ;  but  I  have 
earnestly  sought  to  keep  these  pages  free  from  party 
politics.  I  know,  from  my  experience  as  a  lecturer 
for  thirteen  years,  how  difficult  it  is  to  discuss  English 
history  without  the  line  of  instruction  being  affected 
by  the  instructor's  own  political  bias.  But  I  hope 
that  the  same  experience  has  enabled  me  to  surmount 
that  difficulty.  1  have  throughout  this  work  kept  its 
main  object  steadily  in  view,  and  have  rigidly  rejected 
every  topic  and  every  sentence  that  seemed  calculated 


OF    THE   CONSTITUTION.  U 

to  serve  other  purposes.  I  advocate  here  neithei 
Conservatism  nor  Liberalism,  in  the  sense  in  which 
those  slogans  of  modern  party-warfare  are  commonly 
understood ;  but  I  strive  to  point  out  those  great 
principles  of  the  Constitution,  which  both  Conserva- 
tives and  Liberals  ought  to  know,  and  must  acknow- 
ledge, however  they  may  differ  as  to  the  relative 
importance  which  they  would  fain  see  each  principle 
acquire. 


RISE   AND    PROGRESS 


CHAPTER  II. 


Oar  Constitution  coeval -with  our  Nationality.— Thirteenth  century  tbe  Date  when 
each  commences. — The  Four  Elements  of  our  Nation. — The  Saxon,  i.  e.  the  Ger- 
manic, the  chief  Element — Parts  of  the  Continent  whence  our  Germanic  Ancestor! 
came. — Their  Institutions,  Political,  Social,  and  Domestic. — Date  of  the  Saxon  Im- 
migrations into  this  Island. — What  Population  did  they  find  here? — The  British 
Element  of  our  Nation,  Romanized  Celtic. — Primary  Character  and  Institutions  of 
the  British  Celts. — Effect  of  Koman  Conquests. — How  far  did  the  Saxona  extermi- 
nate or  blend  with  the  Britons? — Evidence  of  Language. 

IT  has  been  stated  in  the  last  chapter  that  Magna 
Carta  is  coeval  with  the  commencement  of  our  na- 
tionality ;  in  other  words,  that  we  have  had  our 
present  Constitution,  as  represented  in  Magna  Carta, 
throughout  the  whole  time  of  our  true  national  his- 
tory, except  some  brief  periods  of  revolutionary  inter- 
ruption. The  proof  of  this  depends  on  the  date  at 
which  we  fix  the  commencement  of  the  history  of  the 
English  nation,  as  a  complete  nation.  This  date  is 
the  13th  century.* 

*  I  am  glad  to  be  able  to  cite  the  high  authority  of  Mr.  Macanlay  in 
rapport  of  the  position  that  the  history  of  the  English  nation  commences 
in  the  13th  century.  Mr.  Macaulay,  in  the  17th  page  of  the  first  volume 
of  his  History,  after  speaking  of  the  Great  Charter  as  the  first  pledge  of 
the  reconciliation  of  the  Norman  and  Saxon  races,  says — "Here  com- 
mences the  history  of  the  English  nation.  The  history  of  the  preceding 
events  is  the  history  of  wrongs  inflicted  and  sustained  by  various  tribes, 
which,  indeed,  dwelt  on  English  ground,  but  which  regarded  each  other 
with  aversion,  such  as  has  scarcely  ever  existed  between  communities 
separated  by  natural  barriers."  Two  eloquent  pages  are  devoted  to  the 
illustration  of  this  fact.  I  may  be  permitted  in  justice  to  myself  to  re- 
mark, that  I  had  frequently  in  my  lectures  maintained  the  position  that 
the  history  of  the  English  nation  does  not  commence  before  the  13th  cen- 
tury ;  and  it  will  be  found  also  in  my  "  Text-book  of  the  Constitution," 
which  was  published  before  the  appearance  of  Mr.  Macaulay*s  History 


OF    THE   CONSTITUTION.  13 

The  accuracy  as  well  as  the  importance  of  this 
date  will  be  more  readily  discerned,  if  we  remember 
the  difference  that  there  is  between  the  history  of  the 
English  and  the  history  of  England  ; — between  the 
history  of  our  nation,  and  the  history  of  the  island  on 
which  we  now  dwell. 

Our  English  nation  is  the  combined  product  of 
several  populations.  The  Saxon  element  is  the  most 
important,  and  may  be  treated  as  the  chief  one  ;  but, 
besides  this,  there  is  the  British  (that  is  to  say,  Ro- 
manized Celtic),  there  is  the  Danish,  and  there  is  the 
Norman  element.  Each  of  these  four  elements  of 
our  nation  has  largely  modified  the  rest  ;  and  each 
has  exercised  an  important  influence  in  determining 
our  national  character  and  our  national  institutions. 
It  is  not  until  we  reach  the  period  when  these  ele- 
ments were  thoroughly  fused  and  blended  together, 
that  the  history  of  the  English  can  properly  be  said 
to  begin.  This  period  is  the  13th  century  after  the 
birth  of  our  Saviour.  It  was  then,  and  not  until 
then,  that  our  nationality  was  complete.  By  nation- 
ality is  meant  the  joint  result  of  unity  as  to  race, 
language,  and  institutions.  In  the  13th  century  these 
unities  were  created.  Let  us  prove  this  separately. 
First,  with  respect  to  race.  Though  the  coming 
over  of  the  Normans  in  the  llth  century  made  up 
the  last  great  element  of  our  population,  a  long  time 
passed  away  before  it  coalesced  with  the  others.  For 
at  least  a  century  and  a  half  after  the  conquest, 


See  also,  in  connection  with  this  subject,  the  first  of  Arnold's  Lectures  on 
Modern  History.  I  do  not  agree  with  that  great  and  good  man  in  think- 
ing that  the  Britons,  who  lived  here  before  the  coming  over  of  the  Saxons, 
are  in  no  respect  .connected  with  us  as  our  ancestors,  and  that,  "  nation- 
ally speaking,  the  history  of  Caesar's  invasion  has  no  more  to  do  with  us 
than  the  natural  history  of  the  animals  which  then  inhabited  our  forests." 
But  it  was  from  his  pages  that  I  was  first  led  to  appreciate  the  paramount 
importance  of  the  Germanic  source  of  our  nation,  and  also  to  realize  tlw 
*ull  meaning  of  the  terms  "national"  and  "nationality." 


14  RISE   AND   PROGRESS 

there  were  two  distinct  peoples,  the  Anglo-Norman 
and  the  Agio-Saxon,  dwelling  in  this  island  They 
were  locally  intermingled  with  each  other,  but  they 
were  not  fellow-countrymen.  They  kept  aloof  from 
each  other  in  social  life,  the  one  in  haughty  scorn,  the 
other  in  sullen  abhorrence.  But  when  we  study  the 
period  of  the  reigns  of  John,  and  his  son  and  grand- 
son, we  find  Saxon  and  Norman  blended  together 
under  the  common  name,  and  with  the  common 
rights,  of  Englishmen.  From  that  time  forth,  no 
part  of  the  population  of  England  looks  on  another 
part  as  foreigners  ;  all  feel  that  they  are  one  people, 
and  that  they  jointly  compose  one  of  the  States  of 
Christendom.  Secondly,  with  respect  to  language. 
In  the  13th  century,  our  English  language,  such 
substantially  as  it  still  is,  became  the  mother  tongue 
of  every  Englishman,  whether  of  Norman  or  of  Saxon 
origin.*  So,  finally,  with  respect  to  our  institutions  ; 
it  was  during  this  century  that  the  Great  Charter  was 
obtained,  and  the  statutes  connected  with  and  confir- 
matory of  it  were  passed,  in  which  we  can  trace  the 
great  primary  principles  of  our  Constitution.  It  was 
in  this  century  that  Parliaments,  comprising  an  Up- 
per House  of  Temporal  and  Spiritual  Peers,  and 
Lower  House  of  Representatives  of  Counties  and 
Boroughs,  were  first  summoned.  It  was  in  this  cen- 
tury that  our  legal  system  assumed  its  distinctive 
features,  and  was  steadily  enforced  throughout  the 
realm. 

It  is  clear,  therefore,  that  it  is  at  this  period,  that 
our  true  nationality  commences  ;  for  our  history,  from 


*  The  earliest  extant  specimen  of  the  English  language,  as  contra- 
distinguished from  the  Saxon  and  Semi-Saxon,  is  the  proclamation  of 
Henry  III.  to  the  people  of  Himtingdonshire,  A.D.  1258.  See  Latham  on 
the  "  English  Language,"  p.  77.  The  reader  need  hardly  be  reminded 
that,  for  the  first  century  and-a-half  after  the  Conquest,  the  Norm  arm  ir 
England  spoke  French. 


OF    THE  CONSTITUTION.  15 

tliis  time  forth,  is  the  history  of  a  national  life,  theo 
complete  and  still  in  being.  All  before  that  period  is 
a  mere  history  of  elements,  and  of  the  processes  of 
tLeir  fusion.  But  it  is  a  preliminary  history  that 
must  be  studied  in  order  to  comprehend  aright  the 
liistory  that  follows.  In  order  to  understand  the 
Great  Charter,  we  must  catch  the  spirit  of  the  age  in 
which  it  was  granted.  To  do  this,  we  must  form  to 
ourselves  a  vivid  and  a  true  idea  of  the  people  that 
obtained  it ;  and  we  must,  for  that  purpose,  trace  the 
early  career,  we  must  mark  the  characteristics,  and 
watch  the  permanent  influence  of  each  of  the  four 
elementary  races  by  which  the  English  people  has 
been  formed.  Of  these  four  elements  the  Anglo- 
Saxon  is  unquestionably  the  principal  one.  Our  lan- 
guage alone  decisively  proves  this  ;  for  it  is  still 
substantially  the  same  language  which  our  ancestors 
spoke  in  Germany  before  they  left  the  banks  of  the 
Eyder  and  the  Elbe  for  the  coasts  of  Britain.*  We 
may,  therefore,  advantageously  first  see  who  and  what 
the  Anglo-Saxons  were  in  their  original  homes  ;  and 
then  examine  who  and  what  the  inhabitants  of  this 
island  were  whom  -the  Anglo-Saxons  found  here. 
The  subsequent  immigration  of  the  Danes,  and  the 
final  influx  of  the  Normans,  will  next  be  separately 
considered  :  and,  then  (after  watching  also  the  pro- 
cesses and  the  results  of  the  partial  fusion  of  these 
races,  both  that  which  took  place  with  respect  to  the 
first  three  before  the  arrival  of  the  Normans,  and  that 
which  afterwards  took  place  with  respect  to  the  Nor- 
man conquerors  themselves,  and  those  whom  they 
subdued),  we  may  proceed  to  the  consideration  of  the 
first  part  of  our  immediate  subject,  to  ascertain  the 
condition  of  the  various  classes  of  the  community  at 

*  There  are  extant  two  Anglo-Saxon  poems,  "  Beowulf"  and  th« 
M  Lay  of  the  Traveller,"  which  are  proved  hy  internal  evidence  to  havf 
been  composed  before  our  Saxon  ancestors  came  to  Britain. 


16  EISE   AND    PROGRESS 

the  time  when  the  great  national  movement  tooi 
place,  by  which  King  John  was  compelled  to  sign 
Magna  Carta  (A.D.  1215). 

The  chief  element  of  our  nation  is  Germanic,  and 
we  have  good  cause  to  be  proud  of  our  ancestry. 
Freedom  has  been  its  hereditary  characteristic  from 
the  earliest  times  at  which  we  can  trace  the  existence 
of  the  German  race.  The  Germans,  alone,  of  all  the 
European  nations  of  antiquity  that  Borne  assailed, 
successfully  withstood  her  ambition  and  her  arms. 
They  never  endured  either  a  foreign  conqueror,  or  a 
domestic  tyrant.  Similarly  proud  and  unblemished 
by  servitude  are  the  pedigrees  of  two  more  of  the 
elements  of  our  nation.  The  Danes  and  the  Nor- 
mans, who  came  among  us,  were  and  ever  had  been 
freemen.  It  was  only  the  British  portion  of  our 
elements  that  had  endured  foreign  conquest  and  arbi- 
trary rule  ;  and  even  this  source  of  our  nation  had 
become  so  largely  tinged  by  the  fusion  of  the  Eoman 
conquerors  with  the  conquered  Celts,  that  we  can 
regard  it,  if  not  with  pride,  at  least  without  humilia- 
tion. 

The  Germans  who  settled  in  this  island  during 
the  fifth  and  sixth  centuries  are  usually  spoken  of  as 
Saxons,  Angles,  and  Jutes.  The  collective  name  of 
Anglo-Saxons  has  been  given  to  them  by  historians, 
for  the  sake  of  distinguishing  them  from  the  Saxons 
of  modern  Germany  ;  and  it  is  a  name  which  it  is 
convenient  to  employ. 

There  has  been,  and  there  continues  to  be  much 
learned  controversy  as  to  the  exact  localities  on  the 
Continent,  whence  the  Germanic  conquerors  of  Brit- 
ain came,  and  as  to  their  precise  degrees  of  affinity 
one  with  the  other.*  Without  entering  into  these 

*  I  think  that  Kemble  and  Latham  have  proved  that  no  Jutes  from 
the  country  now  called  Jutland  took  part  in  the  Anglo-Saxon  Conquest 
»f  this  island.  See  Kemble's  "  Saxons  in  England,"  and  Latham's 


OF    THE   CONSTITUTION.  17 

deep  (though  very  valuable  and  interesting)  discus 
gions,  we  may  be  safe  in  adopting  the  general  state- 
ment that  the  Anglo-Saxons  were  Germans  of  the 
Bea-coast  between  the  Eyder  and  Yssel,  of  the  islands 
that  lie  off  that  coast,  and  of  the  water  systems 
of  the  lower  Eyder,  the  lower  Elbe,  and  the  Weser. 
It  is  important  to  observe  that  these  are  all  parts  of 
Germany,  which  were  less  affected  by  contact  with 
the  Komans,  and  with  which  the  Romans  were  less 
acquainted,  than  was  the  case  with  the  parts  of 
Germany  that  lie  near  the  Rhine  and  the  Danube, 
the  two  boundary  rivers  of  the  Roman  continental 
empire  in  Europe.  And  yet  it  is  almost  exclusively 
from  Roman  writers  that  we  gain  our  information 
about  the  institutions  and  usages  of  our  Saxon  ancestors 
in  their  primeval  fatherland.  Caution  must  be  used 
in  admitting  and  applying  to  them  the  details  which 
we  read  in  Caesar  and  Tacitus  respecting  the  manners 
and  institutions  of  the  Germans.  But  we  may  gain 
thence  some  general  knowledge  which  may  be  safely 
relied  on,  especially  when  taken  in  connection  with 
what  we  know  of  the  Anglo-Saxons,  at  a  later  period. 
Our  German  ancestors  were  freemen,  having  kings 
with  limited  authority,  who  were  selected  from  certain 
families.  Reges  ex  nobilitate,  duces  ex  virtute  su- 
munt.  Nee  regibus  infinita  nee  libera  potestas. 
(Tac.  Mor.  Germ.,  vii.)  Besides  these  kings,  they 
had  chieftains  whom  they  freely  chose  among  them- 
selves for  each  warlike  enterprise  or  emergency.  All 
important  state  affairs  were  discussed  at  general  as- 
semblies of  the  people  ;  matters  of  minor  consequence 
being  dealt  with  by  the  chief  magistrates  alone.  De 
minoribus  rebus  principes  consultant,  de  major  ibus 
omnes :  ita  tamen  ut  ea  quoque  quorum  penes  plebem 

u  English  Language,"  third  edition.  See  also,  for  the  original  homes  of 
the  Anglo-Saxons,  Latham's  "  Ethnology  of  the  British  Islands,"  and  hii 
edition  of  the  u  Germania"  of  Tacitus. 


18  RISE   AND   PROGEESS 

arbitrium  est,  apud  principes  pertractantur.  (Tac. 
Mor.  Germ.,  xi.)  Any  person  might  be  impeached 
and  tried  for  his  life  at  the  chief  popular  assembly. 
Licet  apud  concilium  accusare  quoque,  et  discrimen 
capitis  intendere.  (Ib.,  xii.)  The  head  men,  or  magis- 
trates, who  were  to  preside  in  the  local  courts,  were 
also  elected  at  popular  assemblies  ;  and  the  organiza- 
tion of  the  men  of  each  district  into  Hundreds,  for 
the  purposes  of  local  self-government  and  for  being 
joint  securities  for  the  good  behaviour  of  each  other, 
appears  also  to  have  existed  among  them.  Eliguntur 
in  iisdem  consiliis  et  principes  qui  jura  per  pagos 
vicosque  reddant.  Centeni  singulis  ex  plebe  comites 
consilium  simul  et  auctoritas  adsunt.*  They  had  no 
cities  or  walled  towns,  but  they  had  villages,  where 
each  man  dwelt  in  his  own  homestead.")* 

It  is  very  important  to  mark  this  ;  and  to  observe 
that  the  ancient  Germans  were  equally  distinguished 
from  the  Classic  Greeks  and  Romans,  who  were  essen- 
tially dwellers  in  cities,  and  from  the  wandering  tribes 
of  Central  Asia,  who  have  ever  been  dwellers  in  tents, 
without  settled  home  or  habitation.  The  love  of 
individual  liberty,  the  spirit  of  personal  independence, 
which  characterized  the  German  warrior,  as  contrasted 
with  the  classic  citizen,  to  whom  the  state  was  all 
and  the  individual  nothing,  were  perfectly  compatible 
with  a  respect  for  order,  and  a  capacity  for  becoming 
the  member  of  a  permanent  and  civilized  community, 
such  as  never  existed  in  the  Scythian  of  antiquity  or 
the  Tartar  of  modern  times. 

Slavery  existed  among  the  ancient  Germans,  but 


*  I  do  not  mean  that  Tacitus  had  precisely  the  idea  of  the  Germau 
"Genteci"  which  I  have  stated;  but  such  was,  most  likely,  the  institn- 
tiOE  of  whicn  he  was  partly  informed.  See  Latham's  note  at  p.  60  of 
his  "  Get-mania,"  and  the  chapter  in  Kemble's  "  Anglo-Saxons  "  on  "  Tb« 
Tithing  and  the  Hundred." 

•f  Tac.  Mor.  Germ.,  xvi 


OF   THE   CONSTITUTION.  19 

it  was  generally  of  a  very  mitigated  kind.  They  had 
few  domestic  slaves,  like  those  of  the  classical  nations, 
or  the  negroes  in  America;  and  the  term  "serf" 
would  more  accurately  describe  the  German  "  Ser- 
vus"*  whom  Tacitus  speaks  of.  The  serf  had  his 
own  home  and  his  land,  part  of  the  produce  of  which 
he  was  bound  to  render  to  his  master;  that  was  the 
extent  of  his  servitude  ;  but  he  was  destitute  of  all 
political  rights. 

Military  valour  was  the  common  virtue  of  the 
nations  of  the  North.  The  Germans  possessed  this, 
but  they  had  also  peculiar  merits.  The  domestic 
virtues  flourished  nowhere  more  than  in  a  German 
home.f  Polygamy  was  almost  entirely  unknown 
among  them  ;  and  infanticide  was  looked  on  with  the 
utmost  horror.  The  great  ethnologist,  Pritchard,  in 
his  survey  of  the  different  races  of  mankind,  truly 
observes  that  "  In  two  remarkable  traits  the  Germans 
differed  from  the  Sarmatic  as  well  as  from  the  Sclavic 
nations,  and,  indeed,  from  all  those  other  races  to 
whom  the  Greeks  and  Romans  gave  the  designation 
of  barbarians.  I  allude  to  their  personal  freedom  and 
regard  to  the  rights  of  men  ;  secondly,  to  the  respect 
paid  by  them  to  the  female  sex,  and  the  chastity  for 
which  the  latter  were  celebrated  among  the  people  of 
the  North.  These  were  the  foundations  of  that  pro- 
bity of  character,  self-respect,  and  purity  of  manners, 
which  may  be  traced  among  the  Germans  and  Goths 
even  during  Pagan  times,  and  which,  when  their 
sentiments  were  enlightened  by  Christianity,  brought 
out  those  splendid  traits  of  character  which  distin- 
guish the  age  of  chivalry  and  romance."^ 

Much  indeed  of  the  spirit  of  chivalry,  and  even 

*  Tac.  Mor.  Germ.,  xxv. 
t  Ibid.,  xviiL,  xix. 

j  Pritchard's  "  Researches  into  the  Natnral  History  J  Mankind,' 
»ol  ill  p  423. 


20  EISE   AND    PROGRESS 

the  germs  of  some  of  its  peculiar  institutions,  may  "be 
found  in  the  customs  of  our  Germanic  ancestors  as 
they  are  described  by  Tacitus.  The  young  warrior 
was  solemnly  invested  with  the  dignity  of  arms  by 
some  chief  of  eminence  ;  and  the  most  aspiring  and 
adventurous  youths  were  wont  to  attach  themselves 
as  retainers  to  some  renowned  leader,  whose  person 
they  protected  in  war,  and  whose  state  they  upheld  in 
peace.  (In  pace  decus,  in  bello  presidium.}  These 
were  the  "  Gesithas "  of  the  Anglo-Saxons  ;  they 
fed  at  the  chief's  table,  they  looked  to  him  for  gifts 
of  war-horses  or  weapons,  as  rewards  for  deeds  of 
distinguished  valour.  Their  relation  to  him  was 
that  of  Fealty;  and  we  may  see  here  a  species  of 
Feudalism,  with  the  all-important  exception  that  the 
relation  between  retainer  and  chief  had  no  necessary 
connection  with  the  tenure  of  any  land.* 

Such  were  our  Anglo-Saxon  forefathers,  who,  in 
the  fifth  century  of  the  Christian  era,  came  across  the 
German  ocean  and  changed  the  Roman  province  of 
Britain  into  England,  *.  e.  the  land  of  the  English  ; 
the  new  collective  name  of  the  whole  island  being 
taken  from  the  Anglian  portion  of  the  conquerors, 
though  the  names  of  some  of  its  new  subdivisions, 
such  as  Sussex,  Essex,  Wessex,  &c.,  have  immediate 
reference  to  the  Saxons.  Whether  the  current  story 
of  the  landing  of  Hengist  and  Horsa  in  Kent,  of 
Vortigern  and  Rowena,  &c.,  &c.,  is  to  be  dismissed  to 
the  now  populous  region  of  myths,  or  whether  it  is  to 
be  regarded  as  substantially  true,f  is  not  a  subject  to 
be  discussed  here  ;  but  the  main  facts  may  be  taken 
as  certain,  that  a  great  Germanic  immigration  into 
Britain  took  place  during  the  fifth  century,J  and  that 

*  See  the  excellent  chapter  in  Kemblc,  on  "  The  Noble  by  Service." 
f  See  Kemble's  "  Saxons  in  England,"  and  some  sensible  observations 

»n  the  other  ride  of  the  question  in  Craik's  "  History  of  the  English 

Language." 

J  I  disbelieve  the  new  theory  cf  a  large  settlement  of  Saxons  here  in 


OF    THE   CONSTITUTION.  21 

it  was  effected  not  by  one  great  movement,  but  by 
a  number  of  unconnected  expeditions  of  successive 
squadrons  under  independent  chiefs. 

We  now  come  to  the  consideration  of  the  second 
element  of  our  nation.  We  have  to  examine  what 
the  population  was  which  the  Anglo-Saxons  found 
here,  and  to  ascertain  to  what  extent  they  displaced 
or  blended  with  it. 

The  Saxons  found  Celts*  here,  but  they  were  not 
unmitigated  Celts.  They  were  Romanized  Celts.  In 
order  fully  to  understand  that  term,  we  must  investi- 
gate the  normal  state  of  the  British  Celts,  and  con- 
sider also  how  and  to  what  extent  they  were  influ- 
enced by  Roman  conquest  before  the  arrival  of  the 
Saxons. 

The  description  which  Caesar  gives  of  the  inhabi- 
tants of  Britain  is  the  earliest  that  we  possess.  Some 
valuable  information  is  also  to  be  obtained  from 
Strabo  and  Diodorus  Siculus.f  The  south-west  part 
of  the  island  had  been  known  by  the  civilized  nations 
of  the  ancient  world  at  a  much  more  remote  period. 
The  Scilly  Islands  and  Cornish  coasts  were  frequented 
in  very  early  times  by  the  Phoenician  and  Cartha- 

the  fourth  century  The  fact  of  there  having  heen  then  a  "  Cannes  littonis 
Saxonici "  on  the  east  coast  of  Britain,  proves  no  more  than  the  fact  of 
the  subsequent  existence  of  English  lords  of  the  Welsh  and  Scottish 
marches.  No  one  supposes  the  districts  which  these  officers  ruled  to  have 
been  inhabited  by  the  Welsh  or  the  Scotch.  Such  a  name  merely  shews 
that  the  district  was  peculiarly  exposed  to  the  ravages  of  the  nation  hy 
which  it  is  designated 

*  The  evidence  of  language,  as  shown  hy  the  names  of  our  rivers  and 
mountains  and  the  other  great  natural  objects  of  the  island,  being  Celtic, 
is  conclusive  of  the  fact  of  a  Celtic  population  having  been  spread  over 
Britain.  The  extreme  north  was  probably  occupied  by  a  Norse  race  at 
a  very  early  time  ;  but  that  does  not  affect  English  history.  With  respect 
to  the  Belgic  inhabitants  of  Britain,  I  agree  with  those  who  hold  that 
they  were  Celts,  and  that  the  difference  of  their  language  from  that  of 
the  other  Celts  was  merely  a  difference  of  dialect.  See  Latham's  "  Eth- 
aology  of  British  Islands,"  p.  61. 

f  See  Latham's  "  Ethnology  of  Britain,"  chap.  1  and  2.  See  also  tha 
chapter  CE  Towns,  in  Kemble's  "  Anglo-Saxons." 


22  RISE   AND   PROGRESS 

ginian  traders,  who  obtained  from  our  mines  the  tin 
which  they  imported  to  their  own  countries  and  to 
the  other  states  round  the  Mediterranean,  and  which 
must  have  been  required  for  the  purpose  of  making 
the  bronze,  which  we  know  to  have  been  so  largely 
used  for  purposes  of  utility,  warfare,  and  ornament. 
From  the  Phoenician  merchants  and  miners  the  native 
Britons  acquired  the  art  of  working  metals,  and  of 
forming  the  bronze  weapons  and  other  implements 
which  are  found  in  some  of  the  ancient  tombs  in  this 
island.  But  the  Phoenicians  here,  like  the  Portuguese 
in  the  East  Indies,  seem  merely  to  have  established 
factories,  and  not  to  have  influenced  materially  the 
condition  or  the  usages  of  the  great  mass  of  the 
native  inhabitants.  At  a  period  nearer  to  the  time 
of  Caesar's  landing,  merchant-vessels  from  Gaul  car- 
ried on  some  intercourse  with  our  south-eastern  shores. 
Hence,  as  Csesar  relates,  the  tribes  of  the  maritime 
districts  were  less  barbarous  than  those  of  the  interior, 
and  agriculture  was  more  practised  in  the  south  than 
was  the  case  further  north.  The  population  of  the 
island  is  said  by  him  to  have  been  large,*  a  statement 
which  Diodorus  confirms,  but  which  is  not  to  be  taken 
according  to  our  modern  ideas  of  density  of  popula- 
tion. The  buildings  of  the  ancient  Britons  were 
numerous  ;  but  they  had  no  fortified  towns,  and  used, 
for  the  purposes  of  defence,  spots  among  their  woods 
which  were  naturally  difficult  of  access,  and  which 
they  strengthened  by  a  ditch  and  stockade.  They 
were  subdivided  into  numerous  independent  tribes, 
with  many  kings  and  petty  rulers,  and  their  wars 
with  each  other  were  not  so  frequent  as  was  generally 
The  case  among  the  nations  of  antiquity.f  We  have 
no  means  of  knowing  their  political  institutions, 
beyond  the  fact  of  their  having  kings  and  other 

*  ''Hominum  est  infinita  multitude."     Bell  Gall.  v.  12 
f  Diod.  Sicul..  v.  21. 


OF    THE   CONSTITUTION.  23 

rulers.  If  their  polity  resembled  (as  is  probable)  that 
of  their  kindred  Celts  in  Gaul,  they  had  a  noblesse, 
and  the  mass  of  the  people  was  destitute  of  all  rights 
and  franchises.*  Their  religion  was  Druidism  ;  and 
Britain  is  said  to  have  been  the  parent-seat  of  that 
creed.  The  Druids  were  not  only  priests,  but  they 
were,  also,  almost  the  sole  civil  magistrates  and 
administrators  of  the  law.f  Perhaps  the  point  in 
which  the  British  Celts  contrast  most  unfavourably 
with  the  ancient  G-ermans,  is  in  respect  to  the  sanc- 
tity and  purity  of  the  marriage  tie.  We  have  seen 
how  this  was  respected  among  our  Germanic  ances- 
tors ;  but  the  Celts,  whom  Cassar  found  here,  had  a 
custom,  which,  I  believe,  is  only  paralleled  among  the 
savages  of  some  of  the  South  Sea  Islands.  They 
formed  socialist  communities  of  ten  or  twelve  in  num- 
ber, who  had  their  wives  in  common.  $ 

Against  these  Celts,  possessing,  together  with 
many  of  the  vices  of  the  savage  state,  its  usual  merit 
of  irregular  valour,  Caasar  led  the  Roman  legions 
about  half  a  century  before  the  Christian  era.  But 
his  invasion,  though  attended  with  victory,  and  suc- 
cessfully renewed  in  the  following  spring,  was  rather  a 
transient  inroad  than  an  attempt  at  permanent  con- 
quest. After  the  withdrawal  of  his  troops,  Britain 
was  left  to  her  rough  independence  for  nearly  a  cen- 
tury ;  when  the  Eomans  again  attacked  her,  and} 
after  a  forty  years'  war,  brought  almost  all  that  part 
of  the  island  which  lies  south  of  the  Friths  of  Forth 
and  Clyde  completely  under  the  dominion  of  the 
emperors  of  Eome. 

Seneca's  observation,  that  "  Wheresoever  the  Ro- 
man conquers,  he  inhabits,"  was  made  while  Britain 

*  Cffisar,  Bell.  Gall.,  vi.  13.   "Plebcs  pa?ne  servorum  habctui  loco, 
qnse  per  se  nihil  audet  et  nullo  adhibetur  jonsilio." 
t  De  BelL  Gall,  vi  13,  14. 
J  Ibid.,  v.  14. 


24  RISE    AND   PROGRESS 

was  being  subdued,  and  it  is  true  of  this  as  of  the 
other  conquests  which  were  effected  by  that  remarka- 
ble people. 

Unlike  most  nations  of  antiquity,  the  Komans 
neither  sought  to  exterminate  nor  to  make  a  slave 
population  of  those  whom  they  invaded.  By  planting 
colonies,  and  by  taking  the  towns  into  the  pale  of  the 
Roman  citizenship  as  "  munieipia,"  a  nation  of  Ro- 
mans was  gradually  formed  in  each  conquered  prov- 
ince. Britain  (which,  with  the  exception  of  Dacia, 
was  the  last  acquired,  and  which  was  one  of  the 
earliest  lost  of  the  Roman  provinces)  was  not  Roman- 
ized so  completely  as  was  generally  the  case  ;  But 
Roman  civilization  flourished  here  for  three  centuries, 
and  some  of  its  fruits  still  survive.  Thirty-three 
townships  were  established  under  the  Romans  in  this 
island,  each  possessing  powers  of  self-government  and 
taxation,  and  the  inhabitants  of  each  electing  their 
own  decurions  or  senators,  from  among  whom  the 
magistrates  were  appointed.  We  may  be  partly  in- 
debted to  this,  the  Roman  influence  on  the  British 
element  of  our  •  population,  for  the  system  of  munici- 
pal freedom  and  local  self-rule,  to  which  so  much  of 
our  glory  and  our  power  has  justly  been  attributed.* 

It  is  to  be  borne  in  mind,  that  it  was  not  exclu- 
sively an  Italian  stream  that  blended  with  the  Celtic 
source  of  our  nation,  while  Rome  ruled  the  land. 
From  the  reciprocal  intercourse  between  the  various 
portions  of  the  Roman  empire,  the  British  population 
must  have  been  sensibly  tinged  with  the  blood  of  the 
various  races  that  acknowledged  the  Imperators  of 
Rome.  And  a  similar  result  must  have  been  effected 


*  See,  with  respect  to  the  order  of  Decurions  in  the  Roman  Municipia, 
Guizot's  "Lectures  on  European  Civilization;"  Savigny*8  " History  of 
the  Roman  Law"  (vol.  L  translated  hy  Calcraft) ;  Kernhle's  "Anglo- 
Saxons,"  vol.  ii.  chap.  7 ;  and  Guizot's  "  History  of  Representative  Gov- 
ernment," lecture  22. 


OF    THE   CONSTITUTION.  25 

by  the  presence  of  the  Koman  legions,  especially  in 
consequence  of  the  policy  which  the  emperors  adopt- 
ed, of  pensioning  off  the  veteran  legionaries  with 
grants  of  land  in  the  countries  where  they  had  been 
stationed.  Now,  we  must  remember  that  the  Roman 
legions  under  the  empire  were  raised  and  supplied  by 
recruits  drawn  from  all  parts  of  the  Roman  domin- 
ions, and  that  during  the  later  times  of  Roman  histo- 
ry, they  were  levied  promiscuously  from  the  different 
provincials  and  from  the  barbarians  of  the  frontiers. 
So  that,  under  the  Roman  eagles,  men  of  every  race 
and  clime  must  have  been  assembled,  with  no  com- 
mon tie  save  that  of  discipline,  and  that  of  a  partial- 
ly-acquired knowledge  of  the  Latin  tongue.  And 
even  in  the  best  times  of  the  empire  every  legion  was 
accompanied  by  a  corps  of  barbaric  auxiliaries,  whose 
scene  of  operation  was  carefully  appointed  at  a  distance 
from  the  country  which  supplied  them.* 

These  are  important  points,  when  we  are  consider- 
ing the  British  element  of  our  nation  ;  but  it  is  cer- 
tain that,  however  varied  the  population  of  the  south 
of  the  island  thus  became  under  Roman  rule,  a  com- 
munity of  Roman  civilization  was  generally  diffused, 
and  the  language,  the  literature,  and,  above  all,  the 
laws  of  Rome,  became  naturalized  in  Britain.* 

*  See  Latham's  "  Ethnology  of  the  British  Islands,"  p.  98. 

t  Mr.  Macaulay,  in  the  opening  of  his  History,  underrates  the  ex- 
tent to  which  Britain  was  Romanized.  There  is  an  excellent  article  on 
the  subject  in  the  "  Edinburgh  Review,"  No.  cxci.  Sir  F.  Palgrave'a 
words,  in  his  History  of  the  English  Commonwealth,  on  this  point,  de- 
serve citation.  "  The  country  was  replete  with  the  monuments  of  Roman 
ir.agnificence.  Malmesbury  appeals  to  those  stately  ruins  as  testimonies 
of  the  favour  which  Britain  had  enjoyed ;  the  towers,  the  temples,  the 
theatres,  and  the  baths,  which  yet  remained  undestroyed,  excited  the 
wonder  and  admiration  of  the  chronicler  and  the  traveller;  and  even  in 
the  14th  century,  the  edifices  raised  by  the  Romans  were  so  numerous 
and  costly,  as  almost  to  excel  any  others  on  this  side  the  Alps.  Nor  were 
these  structures  among  the  least  influential  means  of  establishing  the 
Roman  power.  Architecture,  as  cultivated  by  the  ancients,  was  not 
merely  presented  to  the  eve  ;  the  art  spake  also  to  the  mind.  'ITie  wall* 

2 


26  RISE    AND    PBOGKESa 

As  the  power  of  imperial  Home  decayed,  her 
British  province  began  to  suffer  more  and  more  from 
the  inroads  of  the  savage  tribes  from  the  north  of  the 
Jsland,  and  from  the  attacks  of  the  sea-rovers  from 
the  Saxon  shores.  Home  gradually  withdrew  her 
iroops  ;  and,  at  last,  about  five  centuries  after  the 
first  landing  of  Caesar,  she  reluctantly  abandoned  her 
reluctant  province  to  nominal  independence,  but  to 
real  anarchy  and  devastation.  The  arrival  of  the 
Saxons  checked  the  progress  of  the  Caledonian  ma- 
rauders. These  were  driven  back  to  their  northern 
fastnesses,  but  the  German  new  comers  soon  claimed 
supremacy  over  the  British  inhabitants.  A  long  cha- 
otic period  of  savage  warfare  ensued  ;  and  nearly  two 
hundred  years  of  slaughter  and  suffering  passed  away 
before  our  Saxon  ancestors  established  their  Octarchy 
in  the  island  ;  and,  even  then,  a  considerable  portion 
of  the  western  district  remained  in  the  possession 
of  the  British,  or,  as  the  Saxons  termed  them,  the 
Welsh. 

How  far  in  the  parts  of  the  island,  which  the 
Saxons  subdued,  they  exterminated  the  British,  or  to 
what  extent  the  two  populations  were  blended  to- 
gether, deserves  next  our  earnest  inquiry  ;  and  it  is 
a  matter  on  which  the  correctness  of  our  classification 
of  the  elements  of  our  nation  must  depend. 

The  Germanic  origin  of  our  language,  and  the 
peculiarly  savage  nature  of  the  warfare  by  which  the 
Anglo-Saxons  conquered  this  island,  have  led  some 
writers  to  assert  that  the  provincials  of  Britain  were 

Mvered  with  the  decrees  of  the  legislature,  engraved  on  bronze,  or  scnlp- 
turod  on  marble  ;  the  triumphal  arches,  crowned  by  the  statues  of  the 
princes  who  governed  the  province  from  the  distant.  Quiriual;  the  tesse- 
Intcd  floor,  pictured  with  the  mythology  of  the  State,  whose  sovereig  i  was 
its  I'ontiff — all  contributed  to  act  upon  the  feelings  of  the  people,  and  to 
impress  them  with  respect  and  submission.  The  conquered  shared  in  the 
Enne,  and  were  exalte  I  by  the  splendour  of  the  victors." — See  also  hi* 
"  History  of  Normandy  and  England,"  chap.  1. 


OF    THE   CONSTITUTION.  27 

almost  entirely  exterminated,  and  that  the  land  wag 
ropeopled  by  the  rapid  influx  and  continued  increase  of 
German  colonies.  This  hypothesis  would  exclude  the 
Celtic  element  from  our  nation.  Arnold  goes  so  far 
ns  to  say  that  "  The  Britons  and  Komans  had  lived 
in  our  country,  but  they  are  not  our  fathers  ;  we  are 
connected  with  them  as  men  indeed,  but,  nationally 
speaking,  the  history  of  Cassar's  invasion  has  no  more 
to  do  with  us,  than  the  natural  history  of  the  animals 
which  then  inhabited  our  forests.  We, — this  great 
English  nation,  whose  race  and  language  are  now  over- 
running the  earth  from  one  end  to  the  other, — we  were 
born  when  the  white  horse  of  the  Saxons  had  estab- 
lished his  dominion  from  the  Tweed  to  the  Tamar." 

On  the  other  hand,  Sir  F.  Palgrave  and  other 
authorities  consider  that  a  very  large  portion  of  the 
population  of  England,  during  the  Anglo-Saxon  pe- 
riod, was  of  British  descent.  I  believe  that  this  is  a 
subject  on  which  the  recent  labours  of  comparative 
philologists  have  supplied  the  historian  with  new  and 
valuable  light.  I  incline  so  far  to  the  opinion  of 
Arnold,  as  to  regard  the  Germanic  as  the  main  stream 
of  our  race,  but  I  cannot  wholly  exclude  the  Celtic  ; 
nor  can  I  dismiss  Caractacus  as  an  alien  in  blood, 
though  we  can  proudly  claim  a  still  closer  relationship 
with  Arminius.  In  opposition  to  the  Palgravian  hy- 
pothesis, the  reader  may  be  usefully  reminded  that 
the  Saxon  invasion  of  Britain  differed  from  the  usual 
course  of  the  barbarian  conquests  on  the  Continent 
over  the  severed  fragments  of  the  Roman  Empire. 
There  the  military  superiority  of  the  assailants  was 
generally  self-evident  and  uncontested.  Moreover, 
the  Germanic  invaders  of  Gaul,  of  Spain,  and  Italy, 
were  generally  warriors  from  tribes  that  had  been 
influenced  to  some  extent  by  intercourse  with  the 
Romans,  both  in  peace  and  in  war.  Their  chiefs  were 
uot  wholly  unfamiliar  with  Roman  discipline  and  Ro- 


28  BISE  'AND  PROGRESS 

man  art,  and  were  ready  to  appreciate  Roman  civili- 
zation. Many,  also,  of  the  Germanic  conquerors  on 
the  Continent  had  been  converted  to  Christianity 
before  their  inroads  had  been  commenced,  nearly  all 
were  converted  before  their  settlements  were  conclu- 
ded. But  the  Saxons  had  never  been  confined  by 
peaceful  approximation  to  the  Eoman  frontier.  No 
missionary  had  set  his  foot  among  their  forests  or  on 
their  coasts.  They  were  pagan  pirates.  They  inva- 
ded Britain  by  detachments,  and  under  different  inde- 
pendent chiefs.  They  never  landed  in  such  imposing 
force  as  to  awe  the  invaded  into  bloodless  submission, 
but  merely  in  sufficient  numbers  to  fight  their  way — 
to  conquer  indeed — but  only  to  conquer  inch  by  inch. 
Their  savage  paganism  inflamed  them  with  peculiar 
frenzy  against  all  that  the  Christianized  Britons  held 
most  sacred ;  each  side  upbraided  the  other  with 
perfidy  and  fraud  ;  no  possible  bond  of  fair  union 
existed  between  them  ;  and,  probably,  in  no  conquest 
were  the  victors  more  ruthless  to  the  vanquished  than 
in  the  desperate  and  chequered  struggle  by  which  the 
Saxons  won  their  slow  way  over  this  island. 

Led  by  this  historical  circumstantial  evidence,  and 
by  the  great  fact  of  our  language  being  essentially 
Germanic,  I  believe  that  the  Saxons  almost  entirely 
exterminated  or  expelled  the  men  of  British  race 
whom  they  found  in  the  parts  of  this  country  which 
they  conquered.  But  the  same  evidence  (both  the 
historical  and  the  philological),  when  carefully  scru- 
tinized, leads  also  to  the  belief  that  it  was  only  the 
male  part  of  the  British  population  which  was  thus 
swept  away,  and  that,  by  reason  of  the  unions  of  the 
British  females  with  the  Saxon  warriors,  the  British 
clement  was  largely  preserved  in  our  nation.  I  re- 
mind my  readers  that  the  British,  whom  the  Saxons 
found  here,  were  mainly  Celts. 

Besides  those  Celtic  words  in  the  English  Ian- 


OF   THE   CONSTITUTION.  29 

guage  which  can  be  proved  to  be  of  late  introduction, 
and  those  which  are  common  to  both  the  Celtic  and 
Germanic  tongues,  there  are  certain  words  which  have 
been  retained  from  the  original  Celtic  of  the  island. 
These  genuine  Celtic  words  of  our  language  (besides 
proper  names)  are  rather  more  than  thirty  in  number. 
The  late  Mr.  Garnett  formed  a  list  of  them  ;  and  in 
his  opinion  the  nature  of  these  words  showed  that  the 
part  of  the  British  population  which  the  Saxons  did 
not  slay,  was  reduced  into  a  state  of  complete  bond- 
age, inasmuch  as  all  these  words  have  relation  to 
some  inferior  employment.  Now,  if  the  reader  will 
carefully  examine  the  list,  he  will  see  that  not  only  do 
these  Celtic  words  all  apply  to  inferior  employments, 
but  that  by  far  the  larger  number  of  them  apply  to 
articles  of  feminine  use  or  to  domestic  feminine  occu- 
pations. They  are  as  follows  : — Basket,  barrow,  but- 
ton, bran,  clout,  crock,  crook,  gusset,  kiln,  cock  (in 
cock-boat),  dainty,  darn,  tenter  (in  tenter-hook), 
fleam,  flaw,  funnel,  gyve,  griddel  (gridiron),  gruel, 
welt,  wicket,  gown,  wire,  mesh,  mattock,  mop,  rail, 
rasher,  rug,  solder,  size  (glue),  tackle. 

This  remarkable  list  of  words  is  precisely  what  we 
should  expect  to  find,  on  the  supposition  that  the 
conquering  Saxons  put  their  male  prisoners  to  the  edge 
of  the  sword,  except  a  few  whom  they  kept  as  slaves, 
but  that  they  took  wives  to  themselves  from  among 
the  captive  daughters  of  the  land.  The  Saxon  master 
of  each  household  would  make  his  wife  and  his  depend- 
ents learn  and  adopt  his  language  ;  but  in  matters 
of  housewifery  and  menial  drudgery,  their  proud  lord 
would  scorn  to  interfere,  and  they  would  be  permitted 
to  employ  their  old  own  familiar  terms.  All  the  circum- 
stances of  the  Saxon  conquest  favour  this  hypothesis. 
The  Saxons  came  by  sea,  and  in  small  squadrons  at  a 
time.  They  came  also  to  fight  their  way,  and  were 
little  likelv  to  cumber  their  keels  with  women  from 


30  RISE   AND   PROGRESS 

their  own  shores.  A  few  Kowenas  may  have  accom- 
panied the  invading  warriors,  but  in  general  they  must 
have  found  the  mothers  of  their  children  among  the 
population  of  the  country  which  they  conquered. 

This  hypothesis  also  accounts  for  the  difference 
which  undoubtedly  exists  between  ourselves  and  the 
modern  Germans,  both  in  physical  and  in  mental 
characteristics.  The  Englishman  preserves  the  inde- 
pendence of  mind,  the  probity,  the  steadiness,  the 
domestic  virtues,  and  the  love  of  order  which  marked 
his  German  forefathers  ;  while,  from  the  Celtic  element 
of  our  nation,  we  derive  a  greater  degree  of  energy 
and  enterprise,  of  versatility,  and  practical  readiness, 
than  are  to  be  found  in  the  modern  populations  of 
purely  Teutonic  origin. 


OF   THE   CONSTITUTION.  31 


CHAPTER  III. 


Conversion  of  the  Anglo-Saxons. — Its  civilizing  Effects. — They  occupy  the  Roman 
Towna.— England  attacked  by  the  Danes.— The  third,  i.  e.  the  Danish,  Element 
of  our  Nation. — Danish  Institutions  and  Customs. — Ferocity  of  their  Attack  on 
England. — Extent  of  their  chief  Settlements  here. — Evidence  of  Danish  Names  of 
Places  and  Persons. — Alfred  rescues  Saxon  England  from  them. — The  Danish 
blends  with  the  Saxon  Element — Fusion  of  the  first  three  Elements  of  our  Nalioa. 


THE  conversion  of  the  Anglo-Saxons  to  Christianity 
(which  was  principally  effected  during  the  seventh 
century)  did  much  to  mitigate  the  wild  fierceness  of 
the  conquerors,  and  also  to  modify  their  political  and 
social  institutions.  The  ecclesiastics  from  continental 
Christendom,  who  were  the  first  missionaries  to  Saxon 
England,  and  who  continued  to  migrate  hither  in  no 
inconsiderable  numbers,  came  from  lands  where  the  old 
Roman  civilization  had  survived  in  a  much  greater 
degree  than  was  the  case  in  Britain.  They  were 
familiar  with  municipal  self-government  practised  in 
populous  and  important  cities ;  they  were  familiar, 
also,  with  the  idea  of  imperial  power,  as  it  once  had 
been  wielded  by  Roman  emperors  in  the  West,  and 
still  lingered  in  the  ostentatious  though  feeble  grasp 
of  the  emperors  of  Constantinople.  The  Church, 
moreover  (within  the  pale  of  which  St.  Augustine 
and  his  coadjutors  brought  the  English  nation),  had 
her  councils,  her  synods,  and  the  full  organization  of  a 
highly  complex,  but  energetic  and  popular  ecclesiastical 
polity.  She  recruited  her  ranks  from  men  of  every 
race,  and  every  class  of  society.  She  taught  the  unity 


32  BISE    AND   PROGRESS 

of  all  mankind  ;  and  practically  broke  down  the  barriers 
of  caste  and  pedigree,  by  offering  *  to  all  her  temporal 
advantages  as  well  as  her  spiritual  blessings.  She 
sheltered  the  remnants  of  literature  and  science  ;  and 
ever  strove  to  make  the  power  of  the  Intellect  pre- 
dominate over  brute  force  and  mere  animal  courage. 
All  these  civilizing  influences  must  have  largely  affected 
the  converted  Anglo-Saxons,  and  have  given  increased 
efficacy  to  the  subdued  but  not  exterminated  element 
of  our  race,  the  Romanized  British  element,  with 
which  the  Saxons  had  partially  coalesced.  Moreover, 
the  very  wars  which  the  Saxons  waged  against  the 
Britons  and  each  other,  must  have  made  the  Germanic 
conquerors  appreciate  the  military  advantages  of  occu- 
pying the  walled  towns  and  cities  which  the  Romans 
had  left  in  our  island.f  They  who  thus  became 
dwellers  in  cities  would  naturally  adopt  the  system  of 
civic  self-government,  which  Rome  had  once  intro- 
duced, and  which  was  so  congenial  to  the  free  spirit  of 
the  new  settlers.  The  remnant  of  the  British  popu- 
lation in  the  cities  may  have  taught  much  of  this, 
but  it  is  probable  that  the  clergy  of  the  Roman  See 
taught  more.  Thus  many  germs  of  order  appeared  in 
Saxon  England  when  Christianized ;  but,  before  they 
could  be  fully  developed,  a  new  indraft  of  rough 
barbaric  blood  was  poured  into  the  population.  Scan- 
dinavia sent  hither  her  swarms  of  warriors,  fresh  from 
her  rugged  coast,  unsoftened  by  any  recollection  of 
Imperial  or  any  contact  of  Papal  Rome,  to  struggle 

*  See,  as  to  the  influence  of  the  Church  of  Rome  as  an  instrument  of 
modern  European  civilization,  the  admirable  observations  of  the  Protes- 
tant Guizot,  "  Histoire  de  la  Civilization,  en  Europe,"  Lecons  5  et  6. 

f  I  cannot  adopt  the  opinion  of  Mr.  Kemble  (chapter  on  "  The  Towns," 
'look  ii.,  of  the  "  Saxons  in  England  "),  that  the  Saxons  generally  suffered 
the  Roman  cities  to  perish,  and  that  their  own  towns  had  a  totally  inde- 
pendent origin.  The  fact  that  the  Saxons  were  almost  always  at  war 
not  only  with  the  Britons,  but  with  each  other,  is  conclusive  against  sup- 
posing that  they  could  have  neglected  the  military  advantages  which  the 
Roman  fortifications  offered. 


OF   THE   CONSTITUTION.  33 

long  and  fiercely  for  the  mastery  of  the  island,  and  to 
make  the  third  great  element  of  the  English  nation. 
The  consideration  of  this  element  soon  occupies  the 
historical  student,  who  has  been  tracing  the  progress 
of  the  Saxons  in  tin's  island  ;  for  the  Danes  commenced 
their  ravages  and  partial  conquests  of  England  before 
the  Anglo-Saxon  Octarchy  could  be  fused  into  the 
English  kingdom  ;  before,  indeed,  any  of  the  Saxon 
States  had  acquired  a  permanent  predominance  over 
the  rest.* 

In  the  year  787,  thirteen  years  before  the  acces- 
sion of  Egbert  to  the  throne  of  Wessex,  some  men 
of  a  strange  race  landed  from  three  vessels  at  an 
eastern  port  in  England.  They  slew  on  the  beach 
the  Saxon  magistrate  who  came  down  to  question 
them,  plundered  the  neighbouring  habitations,  and 
hastily  re-embarked  with  their  spoil.  Such  was  the 
first  recorded  appearance  of  the  Danes  in  England  ; 
but  they  darken  the  pages  of  the  Anglo-Saxon  Chron- 
icles from  that  time  forth  to  the  year  1066,  when  our 
last  Harold  destroyed  the  last  host  of  Scandinavian 
invaders  at  Stamford  Bridge,  only  a  few  days  before 
his  own  defeat  and  death  at  Hastings. 

These  northern  sea-rovers,  from  whose  ravages 
scarcely  any  European  coast  during  the  ninth  and 
tenth  centuries  escaped,  who  everywhere  appear  as 
conquerors,  and  up  to  whom  so  many  noble  and  royal 
pedigrees  are  traced,  had  much  original  affinity  of 
race,  language,  and  institutions,  with  the  Anglo- 
Saxons  whom  they  assailed  so  savagely  in  their  settle- 
ments in  this  island. 

The  Scandinavian  and  the  Germanic  tongues  are 
classed  together  by  comparative  philologists  under  the 
common  title  of  the  Gothic  stock.  Odin,  Thor, 

*  Kemble  has  completely  proved  that  the  supposed  Saxon  Bretwaldas 
(or  rulers  of  all  Britain)  are  fabulous.  See  also  Hailam's  "  Middle  Ages," 
7oL  ii.  p.  349,  10th  edition. 


34  RISE   AND   PROGRESS 

Freia,  and  the  other  principal  deities  of  the  Scandi- 
navian Valhalla,  had  been  also  the  gods  of  the  Anglo- 
Saxons,  while  the  Anglo-Saxons  were  in  their  primi- 
tive state  of  heathendom.*  Both  Anglo-Saxons  and 
Scandinavians  believed  that  the  princely  families  out 
of  which  they  chose  their  kings  were  descended  from 
Odin.  The  Scandinavians  seem  in  their  political 
institutions  to  have  been  more  turbulently  free  than 
even  their  Germanic  kinsmen.  The  three  Scandina- 
vian countries,  that  ultimately  became  the  monarchies 
of  Denmark,  Sweden,  and  Norway,  were  originally 
subdivided  into  numerous  petty  kingdoms.  In  each 
of  these,  whenever  the  king  died,  his  successor  was 
elected  out  of  the  descendants  of  the  sacred  stock  by 
the  choice  of  the  assembled  freemen  of  the  State. 
Part  of  the  population  was  in  a  state  of  slavery  or 
thraldom  (trceldom),  the  inevitable  result  of  the 
perpetual  wars  and  piracies  in  which  the  Scandina- 
vians indulged.  These  unhappy  beings  were  of  course 
destitute  of  all  political  rights ;  but  every  freeman 
capable  of  bearing  arms  might  attend  at  the  "  Ting," 
as  the  popular  assemblies,  both  for  legislative  and 
judicial  purposes,  were  called,  and  every  freeman  had 
an  equal  voice.  Each  Scandinavian  State  was  subdi- 
vided into  hf»rads  or  hundreds,  which  formed  commu- 
nities for  local  self-government,  identical,  probably,  in 
nature  with  the  hundreds  of  the  primitive  Germans, 
which  have  been  already  spoken  of.  They  followed 
chiefs  of  their  own  choice  in  warlike  expeditions  ; 
though  the  king  was  regarded  as  the  natural  leader  of 
the  national  force  on  great  occasions.  But  unless  the 
assembled  freemen  in  the  Ting  willed  it,  the  king 
could  neither  make  peace  nor  war,  nor  impose  a  tax, 
nor  levy  an  army.  He  was  little  more  than  a  military 


*  See   Kemble's    chapter    on    Saxon    Heathendom,    and    Grimm'i 
**  Deutsche  Mythologie." 


OF   THE   CONSTITUTION.  35 

chieftain,  and  was  sure  of  being  speedily  deposed,  if 
lie  did  not  exhibit  sufficient  spirit  and  energy  in 
warlike  enterprises  to  satisfy  his  subjects.  War,  es- 
pecially war  by  sea,  was  the  occupation  in  which  a 
Danish  freeman  sought  to  live,  and  in  which  he 
prayed  to  die.  Some  gleams,  however,  of  more  civil- 
ized and  civilizing  feeling  may  be  traced  amid  the 
martial  gloom  of  the  Scandinavian  character.  Women 
were  regarded  always  with  honour,  and  often  with 
chivalrous  devotion.  The  respect,  also,  of  these  war- 
riors for  their  laws,  as  administered  by  freemen  towards 
freemen,  was  general  and  profound.  They  delighted 
in  poetry  and  minstrelsy.  They  held  the  arts  of  the 
miner  and  the  worker  of  metals  in  estimation.  Nor 
were  their  maritime  skill  and  enterprise  displayed 
only  for  purposes  of  destruction.  They  looked  on 
commerce  with  respect ;  laws  were  established  and 
strictly  observed  for  the  protection  of  merchant  ves- 
sels ;  and  an  extensive  traffic  was  carried  on  by 
Scandinavian  adventurers  with  the  far  East,  through 
Russia  and  along  the  great  rivers  of  central  Asia.* 
But  the  fierce  excitement  of  battle  was  generally  the 
prevailing  attraction  for  which  a  Danish  fleet  was 
launched.  Every  free  Scandinavian  was  a  seaman  ; 
and  the  art  of  ship-building  was  brought  early  by 
them  to  considerable  perfection  ;  though  they  gener- 
ally used  in  their  predatory  expeditions  small  vessels 
of  little  draught,  so  as  to  enable  them  to  ascend  the 
rivers  of  the  countries  which  they  attacked.  It  was 
chiefly  by  squadrons  from  the  Danish  part  of  Scandi- 
navia that  England  was  assailed,  though  the  Norwe- 
gians co-operated :  f  and  our  chroniclers  speak  of 

*  For  the  Danish  institutions  and  customs  see  Worsaae's  book  on  "  The 
Danes  and  Northmen  in  England,  Scotland,  and  Ireland ; "  (Brighton's 
"  Scandinavia,"  vol.  i.  chap.  iv. ;  and  an  article  by  Sir  Francis  Piilgrave 
on  our  ancient  Law-Courts,  in  the  75th  Number  of  the  "  Edinburgh  Re- 
view." 

t  According  to  Worsaae,  Scandinavians  from  Denmark  chiefly  attacked 


36  RISE   AND   PROGRESS 

them  generally  as  Danes.  In  France,  and  othei 
countries  of  the  Continent,  they  were  known  by  theh 
own  favourite  designation  of  Northmen. 

The  original  affinity  that  had  existed  between  the 
Danes  and  the  Anglo-Saxons  by  no  means  mitigated 
the  ferocity  of  the  Scandinavian  invaders  towards  the 
Germanic  occupants  of  the  island  ;  it  rather  was  a 
cause  of  exasperation.  A  change  had  taken  place  in 
the  Anglo-Saxons  since  their  settlement  here,  which 
had  broken  off  every  tie  between  them  and  their 
Scandinavian  kinsmen. 

The  Anglo-Saxon  had  been  converted  to  Chris- 
tianity, while  the  man  of  the  North  still  gloried  in 
the  title  of  Son  of  Odin  ;  and  hated,  as  a  renegade, 
him  who,  once  proud  of  the  same  descent  from  the 
Asas,  had  left  his  warrior  faith  for  the  new  creed  of 
the  mass  and  the  monk.  Led  by  their  Vikings, 
younger  sons  of  royal  houses,  whose  only  heritage  was 
the  sea  and  such  lands  beyond  its  waves  as  their  own 
swords  could  win  them,  these  "  Slayers  from  the 
North,"  as  the  old  legends  termed  them,  reappeared 
in  England  again  and  again,  settling  ere  long  on  the 
shores  which  at  first  they  merely  ravaged,  breaking 
down  Saxon  bravery  by  their  ferocious  and  fanatic  val- 
our,  overwhelming  the  three  minor  kingdoms  of  Mercia, 
East  Anglia,  and  Northumbria,  and  nearly  crushing 
that  of  Wessex,  which  had  become  the  chief  Saxon 
State  of  the  south  and  centre  of  the  island. 

The  genius  and  heroic  patriotism  of  Alfred  rescued 
Saxon  England  from  utter  destruction.  A  son  and 
grandson  worthy  of  him  succeeded  him  on  the  throne 
of  Wessex.  The  Danish  population,  which  had  spread 

England ;  Scandinavians  from  Norway  chiefly  attacked  Sc  >tland.  Of 
the  three  ScandinaAnan  countries,  Sweden  sent  the  fewest  assailants 
of  this  island.  "Not  that  the  Swedes  were  less  piratical,  bu  that  they 
robbed  elsewhere;  in  Russia,  for  instance,  and  in  Finland.'  Latham't 
Hnglish  Language,  p.  99. 


OF   THE    CONSTITUTION.  37 

over  the  northeast  of  England,  was  brought  to  acknow- 
ledge the  authority,  partly  by  victories  in  the  field,  part- 
ly by  the  influence  of  superior  civilization,  and  still 
more  by  conversion  to  Christianity,  Anglo-Saxon 
and  Anglo-Dane  became  more  and  more  assimilated  ; 
the  Anglo-Saxon  tongue,  institutions,  and  habits 
generally  acquiring  the  ascendancy.  But  there  can 
bo  no  doubt  of  the  influence  of  the  Danish  having 
been  strong  and  permanent.  The  evidence  of  lan- 
guage, both  in  difference  of  dialect  and  in  the  names 
of  places  and  persons,  still  points  out  the  parts  of 
England  where  the  Danish  occupancy  was  strongest, 
In  every  shire  where  we  find  the  compound  names  of 
places  ending  in  by,  (as  in  Derby,  Grimsby,  Ormsby, 
&c.,)  we  trace  the  Dane.  The  German  (or  Saxon) 
ending  would  be  ton.®  The  termination  son  to  pro- 
per names  of  persons  (as  in  Adamson,  Nelson,  i.  e. 
Nielson,  &c.)  marks  a  Danish  pedigree.  Other  proofs 
of  a  similar  kind  are  collected  by  the  modern  Dane, 
who  shows  a  pride,  which  we  may  well  share,  in  these 
marks  of  affinity  between  the  combatants  of  Copen- 
hagen.f 

The  troubles  which  shook  Saxon  England  after 
the  reign  of  Edgar  (875)  caused  fresh  attacks  from 
Denmark.  But  Denmark  was  now  consolidated  into 
one  kingdom,  and  had  been  brought  within  the  civil- 
izing pale  of  Christendom.  The  wars  with  Sveyn 
and  Canute  waged  here  during  the  end  of  the  10th 
and  commencement  of  the  llth  centuries  were  of  a 
very  different  character  to  the  savage  devastations 
with  which  the  old  Northmen  had  swept  the  land. 
They  were  steady  wars  of  conquest ;  and  for  a  time 
were  successful.  Canute  (or  Knut,  as  the  name  is 
more  properly  written  and  pronounced)  was  undis- 

*  See  Worsaae's   "  Danes  in  England,"   sect,  viiL ;    and   Lathain'i 
"Ethnology  of  British  Islands,"  chap.  13. 
t  See  Worsaae,  p.  177,  and  pp.  186,  187, 


38  BISE    AND    PROGRESS 

puted  sovereign  of  England  from  1017  to  1035.  He 
united  also  the  crowns  of  the  three  Scandinavian 
kingdoms,  and  was  one  of  the  greatest  princes  that 
ever  ruled  in  this  island,  whether  we  regard  the  ex- 
tent of  his  power  or  his  personal  character.  But  his 
dynasty  was  not  destined  to  take  root  here,  and  after 
the  death  of  his  son  Hardicanute  (1052),  the  Anglo- 
Saxon  element  showed  its  predominance  over  the 
Anglo-Danish ;  and  the  nation  restored  a  prince  of 
the  old  royal  stock  of  Cerdic  to  the  throne.  From 
the  accession  of  Edward  the  Confessor  to  the  battle 
of  Hastings,  England  may  be  again  correctly  termed 
an  Anglo-Saxon  kingdom. 

We  have  thus  brought  together  three  of  the  four 
elements  of  our  race  ;  and  watched  then-  fusion.  We 
have  seen  the  general  prevalence  of  the  Anglo-Saxon 
over  the  British,  and  the  Danish  :  and  henceforth  we 
shall  speak  of  the  product  of  the  combined  three  as 
Anglo-Saxon,  in  contradistinction  to  the  fourth,  the 
Norman  element,  that  is  yet  to  come.  But  before  we 
turn  our  attention  to  Normandy,  it  is  well  to  pause, 
and  examine  (so  far  as  is  practicable)  the  general  na- 
ture of  the  Anglo-Saxon  institutions  before  the  Nor- 
man Conquest. 


OF   THE   CONSTITUTION.  39 


CHAPTER  IV. 

Anglo-Saxon  Institutions. — Classes  of  the  Population. — Thralls,  Ceorls,  Thanes. — 
Townships.— Hundreds.— Tythings.—  Frank  pledge.— Lords.— The  Were. -The  800- 
men.— The  Towns.— The  Witonagemote.— The  King.— The  Bishops.— The  Clergy. 
— Tha  Poor. — Deterioration  of  the  Saxon  Polity  before  the  Conquest 

NOTWITHSTANDING  the  effects  of  the  Norman-  Con- 
quest, and  the  consequent  introduction  of  the  fourth 
element  of  our  present  nation,  the  foundations  of  so 
many  of  the  most  important  of  our  institutions  are 
Saxon,  that  a  right  understanding  of  the  Anglo- 
Saxon  system  of  government,  and  the  condition  of 
the  various  classes  of  the  community  under  it,  is 
indispensable  in  order  to  discern  and  appreciate  the 
changes  and  modifications  introduced  by  the  Nor- 
mans, and  also  those  which  "the  great  innovator, 
Time,"  has  subsequently  effected.  And  even  at  the 
present  day  we  must  look  back  to  the  Anglo-Saxon 
period,  if  we  would  properly  comprehend  the  princi- 
ples of  many  of  the  most  important  and  the  most 
practical  parts  of  our  laws  and  usages. 

There  is  no  branch  of  constitutional  knowledge 
in  which  so  much  has  been  done  during  the  last 
fifty  years  as  in  Anglo-Saxon  history.  It  used  to  be 
studied  merely  with  a  view  to  modern  politics,  and 
it  was  misunderstood  and  distorted  accordingly.  It 
is  now  investigated  with  the  desire  of  learning  the 
truth,  and  the  lessons  which  we  derive  from  it  are 


40  EISE   AND   PBOGRES3 

therefore  trustworthy  and  sound.  Extreme  party- 
writers  can  no  longer  pretend  to  find,  or  fancy  that 
they  find,  their  favourite  tenets  in  the  Anglo-Saxon 
system ;  but  we  may  all  find  much,  the  spirit  of 
which  is  worthy  of  admiration  and  perpetuation, 
though  the  forms  through  which  it  acted  are  obsolete 
and  incapable  of  revival. 

It  should  be  premised  that  the  word  "  system," 
as  applied  to  the  Anglo-Saxon  times,  must  be  taken 
in  a  very  modified  sense,  or  it  is  calculated  to  mislead 
by  giving  an  idea  of  uniformity,  such  as  never  exist- 
ed. The  Anglo-Saxon  institutions  were  not  arbitra- 
rily created  by  any  one  lawgiver,  or  during  any  one 
age.  They  grew  by  degrees  ;  and  they  grew  also  in  a 
country  which  was  an  almost  perpetual  scene  of  war 
and  tumult,  and  which  was  inhabited  by  races  of 
different  origin ;  so  that  the  local  development  of 
these  institutions  varied,  besides  their  temporary  fluc- 
tuations. It  is  unsafe  to  attempt  to  give  more  than 
a  general  idea  of  their  leading  features,  which  must 
be  variously  worked  out  in  detail,  according  to  the 
particular  reign,  and  the  particular  part  of  England, 
to  which  it  is  meant  to  be  applied. 

One  class  of  the  community  in  Anglo-Saxon  times 
(though  probably  no  very  large  portion)  was  in  a  state 
of  absolute  slavery.  They  were  known  in  Saxon  by 
the  names  of  Theow,  Esne,  and  Thrall.  They  prob- 
ably originally  consisted  of  conquered  Britons  ;  but 
as  criminals,  who  could  not  pay  the  fine  imposed  by 
law,  were  reducible  to  this  state,  many  unfortunate 
beings  of  German  ancestry  must  in  process  of  time 
have  been  comprised  in  this  degraded  and  suffering 
class.  The  freemen  of  the  land  were  classified  by  a 
broad  division  into  the  Ceorls  who  formed  the  bulk  of 
the  population,  and  into  the  Thanes  who  formed  the 
nobility  and  the  gentry.  Sometimes  the  classification 
is  made  into  Ceorls  and  Eorls  :  the  title  of  Eorl 


OF   THE   CONSTITUTION.  41 

having  reference  to  birth,  whereas  the  title  of  Thane 
had  reference  to  the  possession  of  landed  property. 
It  was  this,  the  ownership  of  landed  property,  that 
mainly  determined  the  status  and  political  rights  of 
a  Saxon  freeman,  and  therefore  the  classification  into 
Ceorls  and  Thanes  is  the  most  convenient  to  follow.* 
There  is  an  additional  reason  for  doing  so,  because  the 
Danes  used  the  title  Eorl  (Jarl,  Earl)  to  designate 
authority  and  command  ;  and  when  the  Danish  influ- 
ence extended  in  Saxon  England,  the  title  of  Earl 
was  employed,  not  to  mark  a  man  of  good  birth,  but 
the  ruler  of  a  shire  or  other  district. 

Many  other  names  of  bodies  of  people  among  the 
Saxons,  and  among  subdivisions  of  classes,  might  be 
cited  and  explained,  but  to  do  so  would  require  a  dis- 
proportionate amount  of  this  treatise  ;  and,  for  the 
broad  general  view  of  Anglo-Saxon  institutions,  which 
alone  is  aimed  at  here,  the  classification  of  freemen 
into  Ceorls  and  Thanes  is  sufficient. 

Both  the  democratic  and  the  aristocratic  princi- 
ples entered  largely  into  the  Anglo  Saxon  polity  ;  the 
latter  finally  obtaining  the  ascendancy,  chiefly  by  rea- 
son of  the  strictness  of  the  regulations,  which  it  was 
found  necessary  to  introduce,  in  order  to  maintain 
some  degree  of  public  peace,  and  to  give  some  securi- 
ty for  property  and  person,  amid  the  tumult  and  con- 
fusion which  prevailed  so  often  and  so  generally  in 
England  during  the  troubled  ages  of  the  Anglo- 
Saxon  rule.  To  adopt  the  technical  language  of  a 
modern  writer  on  political  philosophy,-}*  Security  being 
the  primary  object  of  government,  it  was  found  neces- 
sary to  trench  largely  on  both  Liberty  and  Equality, 
in  order  to  preserve  it. 

*  See  on  this  subject,  and  on  the  position  of  an  Earl,  who  had  not  tin 
property  requisite  to  make  him  a  Thane,  an  excellent  note  in  the  new 
edition  of  Mr.  Hallam's  "  Middle  Ages,"  vol.  ii.  p.  256.  See  also  Kern- 
ole's  •'  Saxons  iii  England,"  vol.  i.  p.  131. 

t  Bentham. 


42  RISE    AND   PROGRESS 

One  great  fact,  however,  never  must  be  forgotten 
while  we  examine  the  Anglo-Saxon  institutions,  and 
mark  the  privileges  which  the  thanes  (i.  e.  the  landed 
proprietors)  possessed  over  the  mass  of  the  free  com- 
monalty, the  ceorls.  The  superior  body  was  iiot 
composed  of  an  hereditary  caste  or  noblesse.  It  was 
an  aristocracy,  but  it  was  open  to  receive  recruits 
from  the  ranks  below  it.  Any  ceorl,  who  could  ac- 
quire a  defined  amount  of  landed  property,  could 
become  a  thane. 

It  is  convenient  to  examine  the  Anglo-Saxon 
social  body,  by  commencing  with  its  component  parts. 
This  method  is  recommended  by  Palgrave,  and  (sub- 
ject to  some  slight  additions  and  qualifications)  we 
may  safely  follow  him  in  taking  the  Anglo-Saxon 
townships  as  the  integral  molecules,  out  of  which  the 
Anglo-Saxon  State  was  formed.  He  says,*  "  Ascend- 
ing in  the  analysis  of  the  Anglo-Saxon  State,  the 
first  and  primary  element  appears  to  be  the  commu- 
nity, which  in  England,  during  the  Saxon  period,  was 
denominated  the  Town,  or  Township.  In  times  com- 
paratively modern,  this  term  became  less  frequently 
used,  and  it  has  been  often  superseded  by  the  word 
1  Manor/  The  latter  is  of  Norman  origin,  and  mere- 
ly denotes  a  residence,  and  is  frequently  applied  in 
ancient  records  to  any  dwelling  or  mansion,  without 
any  reference  to  situation,  territory,  or  appendant  ju- 
risdiction. An  explanation  of  the  Saxon  term  may  be 
required.  Denoting  in  its  primary  sense  the  inclosure 
which  surrounded  the  mere  homestead  or  dwelling  of 
the  lord,  it  seems  to  have  been  gradually  extended  to 
the  whole  of  the  land  which  constituted  the  domain." 
There  was  a  lord  of  every  township,  usually  one  of 
the  more  opulent  thanes,  though  some  townships  be- 
longed to  the  sovereign  as  their  superior.  We  will, 

*  "  Rise  and  Progress  of  the  English  Commonwealth,"  p.  65 


OF    THE  CONSTITUTION.  43 

however,  limit  our  attention  to  the  ordinary  and  nor- 
mal case,  where  a  resident  thane  was  lord  of  the 
township.  He  dwelt  there  on  his  own  demesne  lands. 
Bound  him  there  were  grouped  a  number  of  ceorls, 
Borne  occupying  allotments  of  land,  some  tilling  the 
lands  of  others.*  Each  township  had  its  G-erefa,  or 
Reeve,  an  elective  chief  officer ;  and  also  in  each 
township  four  good  and  lawful  men  were  elected, 
who,  with  the  reeve,  represented  the  township  in  the 
judicial  courts  of  the  hundred  and  the  shire.  All 
these  appear  to  have  been  freely  elected  by  the  com- 
monalty of  each  township  from  among  their  own 
body.  The  inhabitants  of  each  township  regulated 
their  own  police.  They  were  bound  to  keep  watch 
and  ward  ;  and  if  any  crime  was  committed  in  their 
district,  they  were  to  raise  the  hue  and  cry,  and  to 
pursue  and  apprehend  the  offender. 

Such  were  the  townships  ;  having,  generally,  each 
its  own  local  court,  with  varying  amounts  of  jurisdic- 
tion ;  and  being  subordinate  to  the  hundred  court, 
which  was  again  subordinate  to  the  shire  moot  or 
county  court. 

This  leads  us  to  consider  the  English  hundreds, 
which  subsist  to  this  day,  though  the  townships  have 
become  almost  obsolete,  having  been  superseded  partly 
by  the  Norman  manors,  and  partly  in  consequence  of 
the  ecclesiastical  division  into  parishes  having  been 
adopted  for  the  purposes  of  petty  local  self-government. 

Whether  our  hundreds  had  originally  any  reference 
to  number  or  not,  it  is  certain  that  they  ultimately 
became  mere  territorial  divisions.  And,  both  in  order 
to  facilitate  the  organization  of  the  inhabitants  for 
military  purposes,  and  to  afford  better  security  against 

*  I  am  only  endeavouring  here  to  give  a  general  sketch  of  a  town- 
»hip,  and  therefore  avoid  entering  into  questions  about  Socmen,  or  Land- 
hoc,  or  Lon,  or  Infangthief,  or  Outfangthief,  &c.  Copious  infrrmation 
on  these  points  may  be  found  in  Palgrave  and  Kemblc. 


44  EISE   AND   PROGRESS 

crime,  the  hundreds  were  subdivided  into  ty  things 
In  one  respect,  the  system  of  tything  was  more  com- 
prehensive than  the  system  of  townships,  as  there  may 
have  been  land  not  included  in  any  township,  and 
which  would  yet  be  within  a  hundred,  and  consequently 
would,  when  hundreds  were  subdivided,  be  brought 
within  a  tything. 

Every  hundred  had  its  court,  which  was  attended 
by  the  thanes  whose  demesnes  were  within  its  bound- 
aries, and  by  the  four  men  and  the  reeve  of  each 
township.  The  hundred  court  was  held  monthly,  and 
was  subordinate  to  the  court  of  the  shire.  The  shire 
or  county  courts  were  held  at  least  once  a  year.  They 
were  presided  over  by  the  bishop,  and  the  eorlderman 
or  earL  Each  shire  had  also  its  reeve,  who,  in  the 
absence  of  the  eorlderman,  was  the  president  of  its 
court,  in  conjunction  with  the  bishop.  All  the  thanes 
in  the  county,  the  four  men,  and  the  reeve  of  each 
township,  and  the  twelve  men  chosen  to  represent  each 
hundred,  attended  the  county  court,  but  it  is  justly 
doubted  whether  any  but  the  thanes  had  a  voice  in  it. 
Though  an  appeal  from  it  seems  to  have  lain  to  the 
Witenagemote,  the  supreme  court  of  the  kingdom,  and 
though  the  Witan  in  some  cases  sometimes  exercised 
an  original  jurisdiction,  the  shire  moots  were  in  practice 
the  most  important  tribunals  in  the  country,  and  both 
they  and  the  minor  ones,  which  we  have  referred  to, 
were  certainly  of  a  very  free  and  popular  character. 

So  far  the  Anglo-Saxon  system  seems  democratic 
enough  ;  but  even  before  we  proceed  to  the  considera- 
tion of  the  Witenagemote,  there  are  two  features  to 
be  attended  to  which  are  of  a  very  different  character. 

Every  member  of  the  Anglo-Saxon  commonalty 
was  bound  to  place  himself  in  dependence  upon  somo 
man  of  rank  and  wealth,  as  his  lord.  The  "  lordless  " 
man  was  liable  to  be  slain  as  an  outlaw  by  any  one 
who  met  him.  Besides  this,  by  the  system  of  frank 


OF   THE   CONSTITUTION.  45 

pledge,  every  man  was  bound  to  be  enrolled  in  some 
tything  ;  the  members  of  each  tything  being  mutually 
responsible  for  each  other's  good  conduct, — to  this  ex- 
tent at  least,  that  if  any  one  of  them  committed  a 
crime,  the  rest  were  bound  either  to  render  him  to 
justice  to  take  his  trial,  or  to  make  good  the  fine  to 
which,  in  his  absence,  he  might  be  sentenced.  The 
effect  of  these  regulations  was  almost  to  limit  every 
man  to  the  place  and  neighbourhood  of  his  nativity  ; 
for  it  was  difficult  and  almost  impossible  to  get  en- 
rolled in  a  tything  or  to  find  a  lord  in  a  place  where  a 
man  was  not  known.  At  the  same  time,  it  is  to  be 
borne  in  mind  that  this  species  of  compulsory  settle- 
ment inflicted  far  less  hardship  in  Anglo-Saxon  times, 
when  there  was  little  traffic  or  communication  be- 
tween one  district  and  another,  and  little  induce- 
ment for  a  poor  man  to  try  to  change  his  home,  than 
has  been  in  modern  times  caused  by  our  laws  of  set- 
tlement and  removal. 

The  recollection  of  this  will  keep  us  from  exag- 
gerating the  importance  of  one  point  in  the  position 
of  the  ceorls,  which  has  caused  some  writers  to  speak 
of  it  as  a  state  of  servitude.  Many  of  the  Saxon 
ceorls  were  legally  annexed  to  the  lands  of  their  lords, 
and  could  not  quit  the  estate  on  which  they  had  to 
render  their  services.  But  the  ceorl  was  in  other  re- 
spects personally  free.  He  was  law-worthy,  to  use  the 
old  expressive  phraseology.  Among  the  Anglo-Saxons 
(as  among  all  the  other  northern  nations)  a  composi- 
tion, or  were-gild.  was  fixed  by  the  law  for  the  slaying 
of  any  member  of  the  State,  according  to  the  class  to 
which  he  belonged.  The  were-gild  for  the  death  of  a 
ceorl  was  200  shillings,  and  was  payable  to  his  family, 
and  not  to  the  lord  of  the  estate  on  which  he  lived. 
But  the  fine  for  killing  a  slave  was  paid  to  the  slave's 
owner.  The  ceorl  had  the  right  of  bearing  arms. 
He  was  a  legal  witness.  As  already  pointed  out,  he 


16  RISE   AND   PROGRESS 

had  political  rights  with  regard  to  the  magistracies  of 
his  township,  his  tything,  and  his  hundred,  both  as  an 
elector  and  as  himself  eligible  to  office.  He  could  ac- 
quire and  hold  property  in  absolute  ownership  ;  and 
he  needed  no  act  of  emancipation  to  pass  into  the 
class  of  thanes,  if  he  acquired  the  requisite  property 
qualification  of  five  hides  of  land.  Many  of  the 
ceorls  were  land  owners  to  a  smaller  extent.  Hallam 
considers  the  Socmen,  who  are  frequently  spoken  of  in 
Domesday  Book,  to  have  been  ceorls  of  this  descrip- 
tion. He  says,  "  They  are  the  root  of  a  noble  plant, 
the  free  socage  tenants,  or  English  yeomanry,  whose 
independence  has  stamped  with  peculiar  features  both 
our  constitution  and  our  national  character."  * 

By  far  the  larger  part  of  the  population  in  the 
Anglo-Saxon  times  was  agricultural,  but  the  towns 
were  of  considerable  importance.  The  free  spirit  of 
local  self-government  which  marks  the  Anglo-Saxon 
polity  as  displayed  in  its  rural  and  village  communi- 
ties, was  no  less  strongly  developed  in  their  cities  and 
towns.  The  burg  (as  the  town  was  usually  called, 
meaning,  literally,  a  fortified  place)  was  organized  like 
a  hundred,  having  subdivisions  analogous  to  those  of 
the  hundred,  according  to  its  size  and  population. 
The  Burhwara,  or  men  of  the  borough,  elected  from 
among  themselves  their  local  officers  for  keeping  the 
peace,  and  other  purposes  of  municipal  government. 
They  thus  also  freely  chose  their  own  borough-reeve, 
or  port-reeve,  as  their  head  of  the  civic  community 
was  termed.  This  officer  presided  at  their  local  courts 
(the  burhwaremot,  or  hustings),  and  in  time  of  war 
led  the  armed  burgesses  into  the  field.  Sometimea 
the  king,  or  a  bishop,  or  a  neighbouring  lord,  claimed 
and  exercised  seignorial  rights  within  the  borough  ; 
nor  can  any  description  of  the  Saxon  municipal  system 

*  "  Middle  Ages,"  vol.  ii.  p.  274. 


OF   THE   CONSTITUTION.  47 

be  drawn  that  could  be  uniformly  accurate.  But,  in 
general,  we  may  safely  assert  that  the  Saxon  boroughs 
were  thriving  and  were  free  ;  that  they  were  strongholds, 
where  the  germs  of  England's  commercial  prosperity, 
and  of  the  capacity  of  the  Anglo-Saxon  race  for  local 
self-government,  were  matured,  amid  the  turbulence 
of  a  rude  age,  and  the  attempted  encroachments  of 
royal  and  aristocratic  power.* 

I  shall  have  occasion  hereafter  to  revert  to  the  sub- 
ject of  the  Anglo-Saxon  judicial  system,  particularly 
with  reference  to  trial  by  jury  ;  at  present  I  will  pro- 
ceed to  a  brief  account  of  the  supreme  assembly,  the 
Witenagemote,  which  many  political  writers  of  the 
last  century  used  to  describe  as  a  genuine  English 
parliament  annually  elected  by  universal  suffrage. 

Palgrave,  Hallam,  and  Kemble,  however  they  may 
differ  among  themselves  on  points  of  detail,  have 
effectually  dispelled  these  monstrous  and  often  mis- 
chievous delusions.  The  Witan  was  essentially  an 
aristocratic  body.  It  was  summoned  and  presided 
over  by  the  king.  It  was  attended  by  the  bishops,  by 
the  earls  or  eorldermen ;  the  thanes  generally  had  a 
right  to  attend  ;  and  probably  those  who  resided  in 
the  neighbourhood  of  the  place  where  a  Witan  was 
held  did  attend  in  considerable  numbers.  For  the 
purpose  of  appealing  against  the  decisions  of  inferior 
tribunals,  and  of  procuring  justice  against  powerful 
individuals,  whom  the  minor  courts  could  not  reach, 
the  magistrates  of  boroughs,  and  the  four  men  or 
reeves  of  townships,  and  other  similar  officers,  must 
have  occasionally  been  present.  This  is  what  Sir 
Francis  Palgrave  terms  "  Kemedial  Kepresentation." 
But  there  certainly  were  no  representatives  of  the 

*  For  further  information  as  to  the  Anglo-Saxon  horottghs,  their 
guilds,  &c.,  see  the  Appendix  on  Municipal  Institutions,  at  the  end  of 
Lappenherg's  "  England  under  the  Anglo-Saxon  Kings."  See,  also,  the 
chapter  in  Ken:  Lie  on  "  The  Towns,"  vol.  ii.  p.  262. 


48  RISE   AND    PROGRESS 

ceorls  at  the  Witan  with  any  power  to  take  part  in  or 
vote  in  hs  proceedings. 

The  Witan  made  laws  and  voted  taxes  ;  but  this 
last  was  a  rare  necessity.  The  king  was  bound  to 
take  their  advice  as  to  making  war  or  peace,  and  on 
all  important  measures  of  government.  The  Witan 
had  the  power  of  electing  the  king  from  among  the 
members  of  the  blood  royal.  They  on  some  occasions 
exercised  the  power  of  deposing  him  for  misconduct  : 
and  they  formed  the  supreme  court  of  justice  both  in 
civil  and  criminal  causes. 

The  nature  and  extent  of  the  authority  which  the 
Anglo-Saxon  kings  possessed  are  partly  shown  by  the 
description  of  the  powers  of  the  Witan.  But,  in  ad- 
dition to  many  minor  rights,  the  royal  prerogatives  of 
appointing  many  of  the  principal  officers  of  govern- 
ment, of  commanding  and  disposing  of  the  military 
force  of  the  kingdom,  were  of  considerable  importance  ; 
and  the  personal  character  of  the  sovereign  influenced 
materially  the  prosperity  or  adversity  of  the  country, 
during  the  troubled  centuries  that  passed  between  the 
accession  of  Egbert  and  the  fall  of  the  last  Harold. 

It  has  been  stated  that  the  bishops  were  members 
of  the  Witan.  The  influence  of  the  clergy  in  the 
Anglo-Saxon  times  was  very  great  ;  the  humblest 
priest  ranking  with  the  landed  gentry  as  a  mass  thane. 
The  ecclesiastical  distribution  of  the  country  into  par- 
ishes (i.  e.  preost  scyres,  each  being  the  district  of  a 
single  priest)  is  Anglo-Saxon  ;  a  division  since  gener- 
ally adopted  for  purposes  of  local  self-government. 
It  is  to  Saxon  laws  that  modern  disputants  respecting 
tithes  and  church-rates  refer  for  the  original  legal  ob- 
ligation on  the  English  laity  to  provide  those  ecclesi- 
astical revenues.  Besides  their  right  to  these,  the 
church  was  largely  endowed  with  glebe  for  her  paro- 
chial churches,  and  broad  lands  for  her  cathedrals  and 
monasteries.  The  existence  of  one  of  these  great  eo- 


OF   THE    CONSTITUTION.  49 

clcsiastical  foundations  in  or  near  a  city  favoured  the 
progress  of  municipal  civilization  ;  and  many  of  our 
towns  grew  up  round  our  ancient  cathedrals.  The 
high  officers  of  the  church,  her  bishops  and  archbish- 
ops, were  recognised  as  the  highest  officers  of  the  State 
nlso.  Kemble  has  well  remarked  on  the  effect  of  this 
alliance  between  Church  and  State  in  the  Saxon  times, 
that,  "  guilty  of  extravagances  the  clergy  were  here,  no 
doubt,  as  elsewhere  ;  but  on  the  whole  their  position 
was  not  unfavourable  to  the  harmonious  working  of  the 
State  ;  and  the  history  of  the  Anglo-Saxons  is  per- 
haps as  little  deformed  as  any  by  the  ambition,  and 
power,  and  selfish  class-interests  of  the  clergy.  On 
the  other  hand,  it  cannot  be  denied  that  in  England, 
as  in  other  countries,  the  laity  are  under  the  greatest 
obligations  to  them,  partly  for  rescuing  some  branches 
of  learning  from  total  neglect,  and  partly  for  the 
counterpoise  which  their  authority  presented  to  the 
rude  aud  forcible  government  of  a  military  aristoc- 
racy. Kidiculous  as  it  would  be  to  affirm  that  their 
influence  was  never  exerted  for  mischievous  purposes, 
or  that  this  institution  was  always  free  from  the  im- 
perfections and  evils  which  belong  to  all  human  insti- 
tutions, it  would  be  still  more  unworthy  of  the  dig- 
nity of  history  to  affect  to  undervalue  the  services 
which  they  rendered  to  society.  If  in  the  pursuit  of 
private  and  corporate  advantages  they  occasionally 
seemed  likely  to  prefer  the  separate  to  the  general 
good,  they  did  no  more  than  all  bodies  of  men  have 
ione, — no  more  than  is  necessary  to  ensure  the  active 
jo-operation  of  all  bodies  of  men  in  any  one  line  of 
conduct.  But,  whatever  their  class-interests  may  from 
time  to  time  have  led  them  to  do,  let  it  be  remem- 
bered that  they  existed  as  a  permanent  mediating  au- 
thority between  the  rich  and  the  poor,  the  strong  and 
the  weak,  and  that,  to  their  eternal  honour,  they  fully 
comprehended  and  performed  the  duties  of  this  most 

3 


50  KISE   AND   PROGBESS 

noble  position.  To  none  but  themselves  would  it 
have  been  permitted  to  stay  the  strong  hand  of  power, 
to  mitigate  the  just  severity  of  the  law,  to  hold  out  a 
glimmering  of  hope  to  the  serf,  to  find  a  place  in  this 
world  and  a  provision  for  the  destitute,  whose  existence 
the  State  did  not  even  recognise." 

This  last  observation  of  Kemble's  refers  to  the 
wretched  position  of  those  outcasts  of  the  Saxon  civil 
community  who  could  find  no  place  in  one  of  the 
mutual  associations,  the  tithings,  and  find  no  lord 
who  would  permit  them  to  become  his  retainers. 
These  friendless,  helpless  beings  could  not  have  been 
very  numerous  (we  are  not  speaking  of  the  wilful  out- 
laws who  lived  by  brigandage,  but  of  the  involuntary 
outlaws),  but  some  of  them  must  have  existed.  Such 
a  being  had  no  existence  in  the  eye  of  the  law,  the 
civil  State  regarded  him  not,  but  abandoned  him  to 
arbitrary  violence  or  starvation.  But  (to  adopt  again 
the  eloquent  words  of  Kemble)  Christianity  "  taught 
that  there  was  something  even  above  the  State,  which 
the  State  itself  was  bound  to  recognise."  The  church 
impressed  the  heavenly  law  by  which  the  poor  and 
needy,  whom  the  earthly  law  condemned  to  misery, 
were  to  be  relieved  ;  and  the  clergy  presented  their 
organization  as  an  efficient  machinery  for  the  distribu- 
tion of  alms.  There  were  other  sources  of  relief  for 
the  poor.  The  tithes  and  other  ecclesiastical  revenues 
contributed  their  portion,  and  thus  at  every  cathedral 
and  every  parish  church  there  was  a  fund  for  the  help- 
less pauper,  and  officers  ready  for  its  administration. 

I  leave  unnoticed  many  points  in  the  Anglo- 
Saxon  system,  of  interest  in  themselves,  but  not  indis- 
pensable for  the  general  purpose  of  this  treatise. 
But,  in  approaching  the  period  of  the  Norman  Con- 
q  uest,  it  may  be  usefully  observed,  with  Guizot,  that 
in  the  last  period  of  the  Anglo-Saxon  system  the 
power  of  the  great  nobles  was  becoming  more  and 


OF   THE   CONSTITUTION.  51 

more  predominant,  so  as  to  menace  both  the  indepen- 
dence of  the  crown  and  the  freedom  of  the  common- 
alty. The  earls,  or  eorldermen,  the  rulers  of  large 
provinces,  like  Earl  Siward,  Earl  Leofric,  Earl  God- 
win and  his  sons,  and  others,  were  forming  a  separate 
order  in  the  State,  through  the  aggressive  influence 
of  which  the  political  rights  and  liberties  of  the 
others  would  probably  have  decayed  and  perished. 
The  catastrophe  of  the  Norman  Conquest  prevented 
this  ;  a  catastrophe  terrible  in  itself ;  but,  in  all  hu- 
man probability,  the  averter  of  greater  evils  even  to 
the  Saxons  themselves  than  those  which  it  inflicted. 


52  RISE   AND   PROGRESS 


CHAPTER  V. 

H*  Normat  Element. — Different  from  the  Danish. — Bolf  the  Ganger's  ConqncfiS 
of  Ncu  stria. — State  of  Civilization  in  France. — Characteristics  of  the  Normans. — 
Then  brilliant  Qualities. — Their  Oppression  of  the  Peasantry. 

LAST,  but  not  least  in  importance,  of  the  four  ele- 
ments of  our  nation,  came  the  Norman.  In  some 
respects  it  may  seem  to  be  identical  with  the  Danish  : 
as  Scandinavia  was  the  parent  country  of  both  Nor- 
man and  Dane.  But  there  is  this  essential  distinc- 
tion. The  Danes  came  to  England  direct  from  their 
Scandinavian  homes.  The  Norman  nation  had  dwelt 
in  France  for  more  than  a  century  and  a  half  between 
the  time  of  its  leaving  Scandinavia  and  the  time  of 
its  conquering  England.  During  that  interval  the 
Normans  had  acquired  the  arts,  the  language,  and  the 
civilization  of  the  Romanized  Gauls  and  the  Roman- 
ized Franks.  They  had  done  more  than  acquire  the 
characteristics  of  others  :  they  had  created  and  devel- 
oped a  new  national  character  of  their  own,  differing 
both  from  that  of  their  rude  Danish  and  Norse  kins- 
men on  the  shores  of  the  Baltic  and  the  North  Sea, 
and  from  that  of  the  Romanesque  provincials,  whom 
they  found  on  the  banks  of  the  Seine  and  the  south- 
ern coast  of  the  Channel. 

Osker,  Regner  Lodbrok,  Eric  the  Red,  Biorn  Iron- 
side, Sidroc,  and  many  moie  kings  and  jarls  of  the 
Norse  or  Dansker-rmen,  had  sailed  up  the  Seine  and 
spread  the  terror  of  their  plunderings  and  slaughters 


OF    THE   CONSTITUTION.  53 

through  France,  before  a  young  Norwegian  chief, 
named  Rolf,  and  surnamed  "  Ganger  "  from  his  length 
of  limb,  left  Norway  with  a  fleet  of  warriors,  and  in 
876  A.  D.,  after  some  passing  forays  in  England  and 
Belgium,  entered  the  estuary  of  the  Seine,  and  made 
the  familiar  voyage  of  his  countrymen  up  to  Rouen. 
To  say  that  he  was  enterprising,  energetic,  and  fear- 
less, is  only  to  say  that  he  was  a  Norse  Viking.  But 
tall  striding  Rolf  was  much  more.  He  was  a  founder 
of  empire.  His  brains  were  as  good  as  his  sinews. 
He  was  a  man  of  thought  as  well  as  a  man  of  action, 
and  was  worthy  to  be  the  lineal  ancestor  of  England's 
sovereigns.  He  "  formed  the  plan  of  substituting  per- 
manent colonization  for  periodical  plunder.  His  host, 
his  men,  his  '  baronage/  ultimately  took  possession  of 
the  city  of  Rouen,  and  the  neighbouring  country, 
measuring  and  dividing  the  land  according  to  the 
Danish  custom,  by  the  rope."*  But  their  settlement 
there  was  not  effected  at  once.  A  long  series  of  wars 
with  the  Frankish  kings  followed,  varied  by  truces 
which  were  always  bought  of  the  Northmen  with 
French  gold.  At  last,  in  the  year  912,  King  Charles 
Le  Chauve  formally  ceded  to  Rolf  the  province  which 
the  jarl  already  firmly  held,  and  which,  from  its  new 
lord  and  his  warriors,  has  thenceforth  borne  the  name 
of  Normandy. 

Even  in  the  crushed  and  miserable  state  of  France 
under  her  last  Carlovingian  kings,  Rolf,  and  his  fellow- 
adventurers  from  Scandinavia,  could  perceive  and  ap- 
preciate the  yet  living  fragments  of  a  civilization 
superior  to  their  own.  This,  in  truth,  the  instinctive 
faculty  of  discerning  and  adopting  the  creations  of 
the  genius  of  others,  peculiarly  characterized  the  Nor- 
mans, not  only  at  the  period  of  their  first  settlement 
in  France,  but  throughout  the  ages  of  the  rule  of 

*  Palgrave's  "  Normandy  and  England,"  p.  518. 


54  EISE   AND   PEOGBE6S 

their  dukes  in  Normandy.  Kolf  and  his  warriors 
embraced  the  creed,  the  language,  the  laws,  and  the 
arts,  which  France,  in  those  troubled  and  evil  times, 
during  which  the  Carlovingian  dynasty  ended  and 
that  of  the  Capets  commenced,  still  inherited  from 
Imperial  Korne  and  Imperial  Charlemagne.  Dukr 
Bollo  (such  were  the  title  and  name  which  Jarl  Kolf 
assumed)  was  succeeded  in  his  duchy  by  a  race  of 
princes  resembling  him  in  mental  capacity,  as  well  as 
in  martial  bravery.  The  descendant**  also  of  the  ori- 
ginal Norman  barons,  taken  as  a  body,  were  conspic- 
uous for  the  same  merits  that  had  marked  their  sires. 
The  century  and  a  half  which  passed  between  Duke 
Hollo's  settlement  in  Normandy  and  Duke  William 
the  Bastard's  invasion  of  this  island  was  an  important 
period  in  mediae val  history.  France,  throughout  this 
time,  was  little  more  than  a  federation  of  feudal 
princes  ;  and,  during  this  period,  the  power,  and 
pride,  and  predominance  of  the  nobility,  as  a  distinct- 
order  from  the  mass  of  the  nation,  grew  rapidly,  and 
assumed  a  peculiar  social  organization. 

Amid  the  general  disorder  of  France  the  noblesse 
fortified  their  castles  where  they  dwelt ;  each  baron  in 
his  stronghold,  with  his  family  and  his  band  of  fa- 
vourite retainers  round  him.  The  management  of 
horses  and  arms  began  to  be  regarded  as  the  sole 
occupation  worthy  those  of  "  gentle  "  blood.  During 
this  century  and  a  half,  chivalry,  with  all  its  romantic 
usages  and  institutions,  grew  into  existence  ;  and  the 
germs  of  modern  literature,  of  the  poetry  of  the  Trou- 
veur  and  the  Troubadour,  appeared.  Keligious  zeal, 
also,  as  manifested  in  distant  pilgrimages,  and  in  the 
lavishing  of  wealth  and  architectural  skill  upon  ab- 
beys, cathedrals,  and  shrines,  was  carried  to  a  height 
previously  unknown.  In  all  these  things,  and  in  a 
generous  respect  for  intellectual  excellence  by  whom- 
soever and  however  manifested,  the  Normans  were 


OF   THE   CONSTITUTION.  55 

pre-eminent.  Their  national  originality  of  character 
was  at  the  same  time  shown  in  the  free,  but  orderly 
and  intelligent  spirit  which  made  them  establish  and 
preserve  in  their  province  a  regularity  of  government, 
system,  and  law,  which  contrasted  strongly  with  the 
anarchy  of  the  rest  of  France.  The  Norman  had  a 
steady  fixity  of  purpose,  he  had  a  discernment  of  the 
necessity  of  social  union  and  mutual  self-sacrifice  of 
free-will  among  the  individual  members  of  a  State  for 
the  sake  of  the  common  weal.  Such  qualities  are  the 
indispensable  materials  for  national  greatness  ;  they 
were  peculiar  in  those  days  to  the  Normans,  especially 
as  distinguished  from  the  versatile  and  impatient  no- 
blesse of  the  rest  of  continental  Christendom. 

We  have  no  trustworthy  details  of  the  institu- 
tions and  laws  of  the  Normans  before  the  conquest  of 
England.  We  only  know  generally  that  there  was  a 
council  of  the  Norman  barons,  which  the  Norman 
duke  was  bound  to  convene  and  consult  on  all  impor- 
tant matters  of  state  ;  and  that  William  the  Conquer- 
or's counts  and  chevaliers  had  not  degenerated  from 
the  independent  frankness  of  their  Scandinavian  sires. 

Such  were  the  brighter  qualities  of  the  Normans, 
who  gave  kings  to  our  throne,  ancestors  to  our  aristoc- 
racy, clergy  to  our  church,  judges  to  our  tribunals, 
rule  and  discipline  to  our  monasteries,  instructors  to 
our  architects,  and  teachers  to  our  schools.  We  must 
proceed  in  our  enumeration  of  the  Norman  gifts,  and 
add,  "  who,  beside  the  misery  which  their  conquest 
caused  to  the  generation  then  in  being,  gave,  for  many 
ages,  tyrants  to  our  peasantry,  and  brutal  oppressors 
to  our  burghers  and  artizans."  For  there  is  a  dark 
side  of  the  Norman  character,  which  the  historian  of 
English  liberty  must  not  omit  ;  and  even  the  aristo- 
crats of  ancient  republican  Rome  were  surpassed  by 
the  Norman  nobility  in  pride,  in  state  craft,  in  merci- 
less cruelty,  and  in  coaise  contempt  for  the  industry, 


56  RISE   AND    PROGRESS 

the  rights,  and  feelings  of  all  whom  they  considered 
the  lower  classes  of  mankind. 

Hitherto  in  speaking  of  the  Normans  in  Norman- 
dy, we  have  been  considering  their  usages  and  their 
characteristics,  so  far  only  as  they  themselves  were 
concerned.  It  remains  to  view  and  judge  them  rela- 
tively to  others. 

The  warriors  of  Kolf,  and  their  descendants,  were 
not  the  whole  population  of  Normandy  ;  they  formed 
only  a  small  minority  of  the  human  beings  who  lived 
in  that  province.  The  peasantry,  whom  the  Norse 
conquerors  found  there,  were  not  extirpated  or  evicted, 
but  became  part  of  the  property  of  the  new  lords  of 
the  soil.  They  were  taken  with  the  land,  like  the 
other  animals  that  were  found  on  it.  The  mere  fact 
of  the  foreign  conquerors  making  slaves  of  the  con- 
quered natives,  would  present  in  itself  nothing  re- 
markable. Such  was  the  established  practice  of  an- 
cient and  mediaeval  times,  nor  can  we  say  that  modern 
ages  have  been  pure  from  it.  But  the  domination  of 
the  Normans  over  their  villeins  (as  the  Neustrian 
peasants  were  termed)  was  marked  by  its  peculiar 
oppressiveness  ;  and  especially  by  the  tyranny  of  the 
forest-laws  which  the  Normans  established.  Sir  Fran- 
cis Palgrave  says  of  this,  that  though  the  Normans 
did  not  destroy  the  old  inhabitants  of  Neustria,  "  the 
conquerors  gave  the  widest  construction  to  the  law  of 
property  ;  air,  water,  and  earth  were  all  to  be  theirs 
—fowl,  fish,  and  beasts  of  chase,  where  the  arrow 
could  fly,  the  dog  could  draw,  or  the  net  could  fall — 
sportsmen  and  huntsmen,  the  Danish  lords  appropri- 
ate to  themselves  all  woodland  and  water,  copse  and 
grove,  river,  marsh,  and  mere.  Their  usurpation  of 
the  rights  previously  enjoyed  in  common  occasioned  in 
the  days  of  Hollo's  great  grandson  a  fearful  rebellion  ; 
find  the  spirit  of  the  forest-laws,  the  pregnant  source 
of  misery  to  old  England,  has  perhaps  acquired  addi- 


OF    THE   CONSTITUTION.  57 

bitterness  in  our  present  age  ;  we  retain  the 
evil,  whilst  our  pariahs  have  lost  the  compensation 
which  mitigated  mediaeval  tyranny." 

It  is  worth  while  to  read  in  the  old  Norman  chron- 
icler, William  of  Jumiege,  his  narrative  of  the  insur- 
rection which  Palgrave  refers  to  ;  not  only  for  the  in- 
formation which  it  gives  respecting  its  immediate  sub- 
ject, but,  still  more,  for  the  insight  which  it  affords 
into  the  prevailing  sentiments  among  the  Normans 
with  respect  to  the  labouring  classes.  Count  Ranulph's 
cruelty  to  the  insurgent  peasants  might  be  attributed 
to  provocation  or  to  individual  ferocity  of  character. 
But  De  Jumiege  wrote  coolly  and  deliberately  ;  and 
the  tone  in  which  he  speaks  of  the  sufferings  and  the 
duties  of  the  peasantry,  may  be  taken  as  accurately 
representing  the  general  opinion  of  the  Norman  lords. 
After  eulogizing  the  virtues  of  the  then  reigning  duke 
Richard,  De  Jumiege  says,  "While  he  abounded  in 
such  goodness,  it  happened  that  in  his  youth  a  certain 
seminary  of  pestiferous  dissensions  arose  within  his 
dukedom  of  Normandy.  For  the  peasants,  one  and 
all,  throughout  the  various  counties  of  Normandy, 
holding  many  assemblies,  resolved  to  live  at  their  own 
free-will  ;  so  that  they  should  enjoy  their  own  rights 
as  to  forest  and  to  fishery,  without  the  barrier  of  the 
law  previously  ordained.  And  for  the  purpose  of 
establishing  these  schemes,  two  delegates  were  elected 
by  each  assembly  of  the  mad  rabble,  who  were  to 
meet  in  a  central  convention  for  the  purpose  of  con- 
firming these  resolutions.  And  when  the  duke  knew 
it,  he  forthwith  appointed  Count  Ranulph  with  a  mul- 
titude of  soldiers  to  repress  the  fierceness  of  the  peas- 
ants, and  disperse  their  rustic  convention.  And  he, 
not  delaying  to  do  the  duke's  bidding,  captured  forth- 
with all  the  delegates,  with  some  other  peasants  ;  and 
having  cut  off  their  hands  and  feet,  he  sent  them  back 
in  that  helpless  state  to  their  comrades  ;  to  check 
3* 


58  RISE   AND   PBOGBESS 

them  from  such  practices,  and  to  be  warning  to  them 
not  to  expose  themselves  to  something  still  worse. 
And  when  the  peasants  received  this  lesson,  they 
forthwith  abandoned  their  assemblies  and  their  de- 
bates, and  returned  to  their  proper  places  at  their 
ploughs."  * 

*  William  of  Jumiege,  book  v,  chap.  2. 


OF   THE   CONSTITUTION.  59 


GHAPTEK  VI. 


The  Norinan  Conquest. — Extent  of  the  Changes  which  it  caused. — Numerical  Amount 
of  the  Norman  and  Anglo-Saxon  Populations. — Amount  of  Loss  of  Life  caused  by 
the  Conquest — Probable  Number  of  the  Normans  and  other  New-comers  from 
Continental  Europe. — Did  the  Population  increase  in  the  Century  and  a  half  pre- 
ceding the  signing  of  Magna  Carta? — The  Miseries  of  Stephen's  Reign. — Period  of 
Tranquillity  under  Henry  IL — Probable  Amount  of  Population  in  1215. 


THE  morning  of  the  29th  day  of  September,  1066, 
saw  a  host  of  the  Norman  chivalry  land  upon  the 
coast  of  the  South  Saxons  (Sussex),  and  the  setting 
sun  of  the  following  14th  day  of  October  saw  them 
the  conquerors  and  lords  of  England.*  The  last  of 
the  Saxon  kings,  with  his  brethren,  and  most  of  the 
bravest  thanes  of  the  south  and  centre  of  the  island 
lay  dead  on  the  field  of  Senlac.  The  two  great 
northern  earls,  Edwin  and  Morcar,  were  timid  and 
irresolute.  There  was  no  vigorous  native  chief  to 
renew  the  war.  The  fortification  of  the  strong  places 
throughout  England  had  been  neglected :  and  as  there 
was  no  post  whither  the  shattered  remains  of  Harold's 
army  could  retreat,  and  where  they  could  halt  in  safety 
until  reinforcements  arrived,  and  until  further  meas- 
ures of  defence  could  be  organized,  a  single  defeat 
placed  the  whole  country  in  the  power  of  the  invader. 
Duke  William  had,  indeed,  some  slight  pretexts 
of  right  to  the  English  crown,  besides  the  cogent  title 

*  See  the  Battle  of  Hastings,  chap.  8  of  "  The  Fifteen  Decisive  Bat- 
tles of  the  World." 


60  RISE   AND   PROGRESS 

of  the  sword.  His  relationship  to  Edward  the  Con- 
fessor, and  the  alleged  bequest  of  the  sovereignty  of 
England  to  him  by  that  king,  gave  a  colourable  ex- 
cuse, both  to  his  own  conduct  in  undertaking  his  great 
enterprise,  and  to  the  conduct  of  the  Saxons  who  sub- 
mitted to  him,  instead  of  prolonging  a  hopeless  war 
after  the  battle  of  Hastings. 

He  was  crowned  King  of  England  by  the  Saxon 
archbishop  with  the  ancient  Saxon  forms,  and  after 
taking  the  coronation  oath  of  the  Saxon  kings,  on 
Christmas  Day,  1066.  At  first  his  rule  was  compar- 
atively mild.  By  confiscating  the  large  estates  of 
King  Harold  and  Harold's  family,  and  principal  adher- 
ents, William  obtained  the  means  of  appeasing  (if  he 
could  not  satisfy)  the  rapacity  of  his  followers,  while 
he  left  for  a  time  the  greater  number  of  the  English 
landowners  in  the  enjoyment  of  their  property.  But, 
under  any  disguise,  conquest  is  to  a  brave  people  a 
bitter  draught.  The  sense  of  foreign  domination, 
and  the  insolence  of  William's  Norman  barons  and 
prelates,  weighed  heavily  on  the  spirits  of  Saxon 
thane  and  Saxon  ceorl.  Then  came  fierce  local 
risings,  with  delusive  partial  success  over  the  foreign- 
ers ;  soon  crushed  by  the  disciplined  troops  and  the 
high  military  genius  of  the  Conqueror.  Then  followed 
more  sweeping  confiscations,  and  darker  cruelties  :  the 
results  not  so  much  of  hasty  anger,  as  of  a  stern,  re- 
morseless policy.  William  resolved  that  his  English 
subjects  should  fear  him,  if  they  hated  him  ;  and  no 
feeling  of  mercy  ever  made  him  pause  in  any  measure 
that  seemed  adapted  to  increase  and  consolidate  his 
power. 

There  are  some  yet  standard  works  on  our  history 
and  our  laws,  in  which  the  Norman  Conquest  of  Eng- 
.and  is  spoken  of  in  terms  which  would  lead  the 
reader  to  imagine  that  it  amounted  to  little  more  than 
the  substitution  of  one  royal  family  for  another  on 


OF   THE   CONSTITUTION.  61 

the  throne  of  this  country,  and  to  the  garbling  and 
changing  of  some  of  our  laws  through  the  "  cunning 
of  the  Norman  lawyers."  But  it  is  certain  that  the 
social  and  political  changes  which  that.  Conquest  in- 
troduced into  England,  excelled  in  importance  the 
effect  of  any  similar  event  which  had  occurred  in 
media3val  Christendom,  and  that  they  have  not  been 
equalled  by  the  results  of  any  subsequent  conquest 
which  one  Christian  nation  has  effected  over  another. 
In  consequence  of  the  triumph  of  the  Normans  here, 
new  tribunals  and  tenures  predominated  over  the  old 
ones,  new  divisions  of  race  and  class  were  introduced, 
whole  districts  were  devastated  to  gratify  the  vengeance 
or  the  caprice  of  the  new  tyrants,  the  greater  part 
of  the  lands  of  the  English  were  confiscated  and  di- 
vided among  aliens,  "  the  very  name  of  Englishman  was 
turned  into  a  reproach,  the  English  language  rejected 
as  servile  and  barbarous,  and  all  the  high  places  in 
Church  and  State  for  upwards  of  a  century  filled  ex- 
clusively by  men  of  foreign  race."  The  words  of 
Thierry  *  on  this  subject  are  no  less  true  than  elo- 
quent. He  tells  his  reader  that  "  if  he  would  form  a 
just  idea  of  England  conquered  by  William  of  Nor- 
mandy, he  must  figure  to  himself,  not  a  mere  change 
of  political  rule,  nor  the  triumph  of  one  candidate 
over  another  candidate,  of  the  man  of  one  party  over 
the  man  of  another  party,  but  the  intrusion  of  one 
people  into  the  bosom  of  another  people,  the  violent 
placing  of  one  society  over  another  society,  which  it 
came  to  destroy,  and  the  scattered  fragments  of  which 
it  retained  only  as  personal  property,  or  (to  use  the 
words  of  an  old  act)  as  '  the  clothing  of  the  soil/  He 
must  not  picture  to  himself — on  the  one  hand,  Wil- 
liam, a  king  and  a  despot — on  the  other,  subjects  of 


*  Thierry's  "  Norman  Conquest."  See,  too,  Hallam's  "  Middle  Ages,* 
ii.  p.  304. 


62  RISE   AND   PBOGKESS 

William's,  high  and  low,  rich  and  poor,  all  inhabiting 
England,  and  consequently  all  English  :  he  must  ima- 
gine two  nations,  of  one  of  which  William  is  a  mem- 
ber and  the  chief — two  nations  which  (if  the  term 
must  be  used)  were  both  subject  to  William  ;  but 
as  applied  to  which  the  word  has  quite  different 
senses,  meaning  in  the  one  case  subordinate,  in  the 
other  subjugated.  He  must  consider  that  there  are 
two  countries — two  soils — included  in  the  same  geo- 
graphical circumference  ;  that  of  the  Normans  rich 
and  free, — that  of  the  Saxons  poor  and  serving,  vexed 
by  rent  and  taillage  ; — the  former  full  of  spacious 
mansions,  and  walled  and  moated  castles, — the  latter 
scattered  over  with  huts  of  straw  and  ruined  hovels  ; 
— that  peopled  with  the  happy  and  the  idle — with 
men  of  the  army  and  of  the  court — with  knights  and 
nobles, — this,  with  men  of  pain  and  labour — with  far- 
mers and  artizans ; — on  the  one,  luxury  and  insolence, 
— on  the  other,  misery  and  envy — not  the  envy  of 
the  poor  at  the  sight  of  opulence  which  they  cannot 
reach,  but  the  envy  of  the  despoiled  when  in  presence 
of  the  despoiler." 

We  have  now  traced  the  four  great  elements  of 
our  nation  from  their  respective  origins,  until  they 
were  all  brought  together  in  this  country.  The  period 
which  elapsed  between  the  introduction  of  the  last  of 
these  in  point  of  date  (that  is  to  say,  the  Norman), 
and  the  national  rising  against  King  John  in  the  early 
part  of  the  13th  century,  is  a  period  of  fusion  ;  very 
interesting,  as  to  many  of  its  events,  and  as  to  the 
personal  characters  of  many  who  figured  during  it. 
In  particular,  the  Conqueror  himself,  the  brave  Saxon 
chieftain  Hereward,  the  Archbishops  Lancfranc  and 
Anselm,  King  Henry  the  Second,  Archbishop  A'Beck- 
8tt,  and  William  Longbeard,  the  Saxon  burgess,  who 
strove  in  vain  to  defend  the  oppressed  commonalty 
of  the  capital  against  their  Norman  tyrants,  all  de- 


OF   THE   CONSTITUTION.  63 

serve  the  careful  attention  of  the  student  of  English 
history,  and  of  the  student  of  human  nature.  But 
to  avoid  prolixity,  I  pass  over  the  details  of  this  pe- 
riod ;  and  proceed  to  examine  the  number  and  con- 
dition of  the  various  classes  of  the  population  of 
England  in  the  reign  of  John,  the  epoch  of  the  true 
dawn  of  our  complete  nationality.  In  making  that 
examination,  we  shall  be  led  to  consider  several  of  the 
most  important  events  which  had  then  happened  in 
the  interval  since  the  Conquest. 

One  primary  point,  before  we  notice  the  subdivi- 
sions of  the  population,  is  to  ascertain,  as  well  as  we 
are  able,  the  numerical  amount  of  the  whole.  And 
this  is  closely  connected  with  a  topic,  which  ought  not 
to  be  omitted  when  we  speculate  on  the  comparative 
importance  of  each  of  the  four  elements  of  our  race  ; 
I  mean  the  proportion  which  the  Normans  and  other 
new-comers  from  Continental  Europe  bore  to  the 
Anglo-Saxons  and  Anglo-Danes,  among  whom  they 
settled  as  conquerors. 

The  population  of  England  at  the  time  of  the 
Norman  conquest  is  variously  estimated  at  from  a 
million  and  a  half  to  two  millions.  It  is  necessary  to 
bear  this  in  mind,  when  we  read  of  the  losses  sus- 
tained by  defeats  in  the  field,  and  other  calamities  of 
this  period  ;  because  we  are  too  apt  to  think  of  the 
England  of  bygone  centuries  as  of  the  England  of 
our  own  times  in  point  of  population.  Unless  we 
correct  this  anachronism  in  our  ideas,  we  shall  not 
attach  sufficient  importance  to  the  destruction  of  two 
or  three  hundred  thousand  human  beings  in  that  age, 
as  being  a  catastrophe,  not  only  shocking  in  itself 
with  regard  to  the  immediate  suiferers,  but  calculated 
seriously  to  thin  the  land  of  its  old  inhabitants. 

I  propose  to  determine  as  far  as  possible,  1st,  the 
extent  to  which  the  Saxon  population  was  diminished 
by  its  afflictions  under  the  Normans  ;  and,  2ndly,  the 


64  RISE   AND   PROGRESS 

probable  number  of  the  Normans  and  other  Conti- 
nental Europeans  who  settled  here.  We  shall  find 
that  these  calculations  will  supply  us  with  our  primary 
data  for  estimating  the  number  of  the  population  at 
the  epoch  of  the  Great  Charter. 

The  Saxon  army  which  perished  with  Harold,  at 
Hastings,  is  said  not  to  have  been  a  very  large  one. 
But  the  slaughters  of  the  Saxons,  which  followed,  in 
consequence  of  their  subsequent  insurrections  against 
the  Conqueror,  were  numerous  and  severe  :  nor  can 
we  estimate  the  total  number  that  perished  by  the 
edge  of  the  sword,  during  William's  invasion  and 
reign,  at  less  than  a  hundred  thousand.  The  number 
of  exiles  also  was  considerable ;  as  very  many  of  the 
Saxons  sought  refuge  in  Scotland  ;  and  many  fled 
beyond  seas  from  the  tyranny  of  their  Norman  lords. 
But  the  massacres  perpetrated  in  cold  bood  by 
William's  command  destroyed  more  than  fell  fighting, 
or  fled  into  exile ;  and  the  famines  and  pestilences 
caused  by  his  merciless  devastations  of  wide  tracts  of 
populous  and  fertile  territory  were  more  destructive 
still.  One  of  his  most  atrocious  acts  of  this  kind 
was  his  laying  waste  the  country  between  the  Humber 
and  the  Tyne,  partly  out  of  anger  for  a  rising  of  some 
of  the  inhabitants  against  him,  and  partly  as  a  meas- 
ure of  precaution,  because  he  expected  an  invasion 
from  Denmark,  and  thought  that  the  Danes  would 
most  likely  land  in  the  North  of  England,  where  the 
population  was  most  nearly  akin  to  them.  The 
Norman  monkish  chronicler,  Ordericus  Vitalis,  who  is 
generally  William's  unscrupulous  panegyrist,  thus 
speaks  of  his  devastation  of  Northumbria  :  "  He  ex- 
tended his  posts  over  a  space  of  one  hundred  miles. 
He  smote  most  of  the  inhabitants  with  the  edge  of 
the  avenging  sword  :  he  destroyed  the  hiding-places 
of  others  :  he  laid  waste  their  lands  :  he  burned  their 
houses,  with  all  that  was  therein.  Nowhere  else  did 


OF    THE  CONSTITUTION.  65 

William  act  with  such  cruelty  :  and  in  this  instance 
he  shamefully  gave  way  to  evil  passion  ;  while  he 
scorned  to  rule  his  own  wrath,  and  cut  off  the  guilty 
and  innocent  with  equal  severity.  For,  excited  by 
jinger,  he  bade  the  crops,  and  the  herds,  and  the 
household  stuff,  and  every  description  of  food,  to  he 
gathered  in  heaps,  and  to  be  set  light  to  and 
utterly  destroyed  altogether :  and  so  that  all  suste- 
nance for  man  or  beast  should  be  at  once  wast- 
ed throughout  all  the  region  beyond  the  Humber. 
Whence  there  raged  grievous  want  far  and  wide 
throughout  England  :  such  a~  misery  of  famine  in- 
volved the  helpless  people  that  there  perished  of 
Christian  human  beings,  of  either  sex,  and  every  age, 
upwards  of  a  hundred  thousand."  * 

A  large  part  of  Hampshire  was  similarly  made  a 
wilderness  by  his  orders,  so  as  to  supply  him  with  a 
"  New  Forest,"  wherein  he  might  pursue  his  favourite 
sport  of  the  chase.  Many  other  acts  of  his  might  be 
mentioned,  all  tending  to  waste  the  people  who  were 
his  victims  from  off  the  face  of  the  land  :  and  an 
infinitely  larger  number  of  cruel  and  destructive  acts 
were  perpetrated  by  him  and  his  Norman  followers, 
no  special  record  of  which  has  survived,  but  to  which 
the  lamentations  of  the  old  Saxon  chroniclers  bear 
emphatic  though  confused  testimony.  For  instance  : 
one  of  these  old  writersf  tells  us  that  he  forbears  nar- 
rating, in  detail,  the  conduct  of  the  Normans  to  the 
mass  of  the  population,  "  because  it  was  hard  to 
express  in  words,  and  because  it  would  appear  incred- 
ible by  reason  of  its  excessive  barbarity."  Many 
more  such  phrases  of  the  Saxon  monks  who  saw  and 
mourned  over  the  miseries  of  their  countrymen  might 
be  cited.  And  there  is  also  the  explicit  proof  which 


*  Ordericus  Vitalia,  lib.  iv. 
f  Hist.  Eliens. 


6G 

the  figures  in  Domesday  Book*  supply  of  the  decay 
of  the  populations  of  the  great  cities  and  towns,  and 
it  was  during  the  first  20  years  of  the  Norman  rule 
in  this  country.  Altogether,  I  believe  that  the  old 
population  of  the  island  was  diminished  by,  at  least, 
a  third,  during  the  invasion  and  the  reign  of  William 
the  Conqueror. 

It  remains  to  be  considered  how  far  this  gap  was 
filled  up  by  the  Normans  and  their  companions. 

William's  army  at  Hastings  is  said  to  have  num- 
bered 60,000  fighting  men.  Of  these,  a  fourth  fell  in 
the  fight;  but  we  must  add  largely  for  the  non-com- 
batants who  accompanied  the  troops.  We  have  an 
account  also  of  another  even  larger  host,  which  he 
summoned  over  here  from  the  Continent,  in  the  19th 
year  of  his  reign,  when  he  expected  an  invasion  from 
Scandinavia  ;  and  a  constant  stream  of  new  popula- 
tion from  the  Continent  was  poured  into  England 
during  the  times  of  all  her  first  Anglo-Norman  mon- 
archs. 

Few  of  these  adventurers  returned  to  their  homes. 
So  that  it  is  probable  that,  during  the  reigns  of  the 
Conqueror  and  his  sons,  from  two  hundred  thousand 
to  three  hundred  thousand  Normans  and  other  im- 
migrants from  the  Continent  became  inhabitants  of 
this  country. 

The  accession  of  population  to  England  from  the 
Continent  continued  during  the  reigns  of  Stephen 
and  Henry*  II.,  especially  the  latter  ;  when  the  Plan- 
tagenet  heritage  in  the  south  of  France  contributed 
to  the  influx.  The  introduction  also  of  a  large  colony 
of  Flemings,  who  were  principally  settled  in  the 
neighbourhood  of  Wales,  is  not  to  be  omitted.  I  do 
not,  however,  think  that  the  aggregate  population  of 
the  various  races  in  England  was  larger  at  the  death 

*  See  Hallam's  "  Middle  Ages,"  chap.  8,  p.  2. 


OF   THE   CONSTITUTION.  67 

of  Kichard  I.  than  at  the  epoch  of  the  Conquest. 
The  misery  which  the  country  suffered  during  the 
reign  of  Stephen  must  fearfully  have  reduced  the 
number  of  human  beings  in  the  land.  No  descrip- 
tion of  that  misery  can  be  more  emphatic  than  that 
which  the  old  chroniclers  give.  They  tell  us  that 
"  The  nobles  and  bishops  built  castles,  and  filled  them 
with  devilish  and  evil  men,  and  oppressed  the  people, 
cruelly  torturing  them  for  their  money.  They  made 
many  thousands  die  of  hunger.  They  imposed  taxes 
upon  towns,  and  when  they  had  exhausted  them  of 
everything,  set  them  on  fire.  You  might  travel  a 
day,  and  not  find  one  man  living  in  a  town,  or  in  the 
country  one  cultivated  field.  The  poor  died  of  hun- 
ger ;  and  they  who  were  once  men  of  substance  now 
begged  their  bread  from  door  to  door.  Never  did  the 
country  suffer  greater  evils.  The  very  Pagans  did  not 
more  evil  than  those  men  did.  If  two  or  three  men 
were  seen  riding  up  to  a  town,  all  its  inhabitants  left 
it,  taking  them  for  plunderers.  To  till  the  ground 
was  as  vain  as  to  till  the  sand  on  the  sea-shore.  And 
this  lasted,  growing  worse  and  worse,  throughout 
Stephen's  reign.  Men  said  openly  that  Christ  and 
his  saints  were  asleep." 

During  the  long  and  prosperous  reign  of  Henry 
II.,  the  country  recovered  from  "that  shipwreck  of 
the  commonwealth,"  as  one  of  Henry's  Acts  of  State 
emphatically  calls  the  condition  of  the  land  in  the 
time  of  Stephen.  But  looking  generally  to  the  char- 
acter of  the  other  reigns,  I  do  not  think  there  is  any 
reason  to  suppose  that  the  total  population  of  the 
realm,  in  the  time  of  John,  exceeded  the  largest 
census  which  is  assigned  to  Anglo-Saxon  England, 
namely,  about  two  millions. 


68  RISE   AND    PROGRESS 


CHAPTER  VII. 

General  View  of  the  Fendal  System. — Meaning  of  the  terms  "  Feudal "  and  "  Allo- 
dial."— General  Sketch  of  tie  Progress  of  a  Germanic  Settlement  in  a  Roman 
Province.— Causes  of  Feudalism. — Progress  of  "  Sub-infeudation." — Aristocratic 
Character  of  Feudalism. — Its  Oppressiveness  to  the  Commonalty. — Its  brighter 
Features. 

IN  order  to  understand  the  classes  into  which  the  two 
millions  of  human  beings,  who  dwelt  here  at  the  time 
of  the  grant  of  the  Great  Charter,  were  divided,  and 
the  system  of  government  which  then  existed,  a  right 
comprehension  of  the  principles  of  the  Feudal  Sys- 
tem is  indispensable.  Even  the  state  of  the  enslaved 
peasantry  of  England  at  the  commencement  of  the 
13th  century  cannot  be  thoroughly  discerned,  unless 
we  view  the  peasants  in  relation  to  their  feudal  lords. 
And,  when  we  proceed  to  the  great  events  of  the 
century,  it  would  be  utterly  impossible  to  give  any 
intelligible  account  of  the  greatest  of  all,  the  acquisi- 
tion of  Magna  Carta,  without  continually  pausing  to 
explain  feudal  terms  and  usages,  if  we  should  not 
have  taken  a  preliminary  survey  of  that  strange  body 
of  social  and  political  institutions,  so  long  and  so 
generally  prevalent  over  Europe,  to  which  historians 
and  jurists  have  given  the  title  of  Feudal. 

The  inquiry  is,  indeed,  far  from  being  one  of  mere 
antiquarian  interest.  The  forms  of  our  Constitution 
cannot  be  understood  without  it ;  and  the  student  of 
our  law,  especially  of  the  law  of  real  property,  must 


OF   THE   CONSTITUTION.  69 

still  resort  to  the  feudal  system  for  the  principles,  and 
even  for  the  practice,  of  his  art.* 

I  am  not,  however,  going  to  discuss  here,  either 
the  etymology,  or  the  date  of  the  birth,  or  the  exact 
pedigree  of  Feuds.  Suffice  it,  for  the  present  occa- 
eion.  to  say  generally,  that  the  feudal  system  was 
gradually  matured  during  the  six  or  seven  centuries 
of  confusion  which  followed  the  irruption  of  the  Ger- 
manic nations  into  the  Western  Roman  empire  :  and 
that,  at  the  epoch  which  we  treat  as  the  dawn  of 
complete  English  history  (about  A.  D.  1215),  the  feu- 
dal system  was  established,  though  with  different 
modifications,  in  every  European  country  that  had 
been  a  Roman  province  and  had  been  overrun  by 
German  conquerors.  The  feudal  system  was  also 
then  established  in  Germany  itself. 

There  are  many  things  which  are  the  more  easily 
understood  by  first  obtaining  an  understanding  of 
their  opposites.  This  is  the  case  with  the  word 
"  Feudal."  The  term  used  in  contradistinction  to  it, 
by  European  jurists,  is  "  Allodial."  Allodial  land 
was  land  in  which  a  man  had  the  full  and  entire  prop- 
erty ;  which  he  held  (as  the  saying  is)  out  and  out. 
But  feudal  land  (and  the  land  itself  so  held  was  called 
a  Feud,  or  Fief)  was  land  which  a  man  held  of  some 
other  man,  from  whom  or  whose  ancestors  the  holder 
(or  his  ancestor)  had  received  permission  to  possess 
and  enjoy  the  fruits  of  the  land  ;  but  the  property 
and  ultimate  dominion  of  it  remained  in  the  giver, 
or,  as  he  was  technically  called,  the  lord.  The  idea 
of  the  sovereign  owner  of  land  allowing  individuals  to 
have  the  possession  of  portions  of  it,  and  even  to 
transmit  such  possessory  interest  to  their  heirs,  on 
condition  of  rendering  certain  services,  usually  milita- 
ry, may  be  found  in  the  institutions  of  almost  every 

*  See  "Haynes  on  Conveyancing,"  vol.  i.  p.  G.  Fiftl  edition.  See, 
fclso,  Stephens'  "  Blackstone,"  vol.  i. 


70  RISE   AND   PBOGRE83 

ancient  European  nation,  and  in  those  of  many  Asi- 
atic States  at  the  present  time.  But  it  was  only  in 
mediaeval  Europe  that  this  simple  idea  and  natural 
custom  were  elaborated  into  a  complete  system  of 
government  and  of  social  organization,  to  which 
everything  else  was  made  subordinate,  and  by  refer- 
ence to  which  every  public  office  and  every  private 
right  were  determined. 

In  order  the  more  clearly  to  picture  to  ourselves 
the  chief  causes  of  the  establishment  of  Feudalism, 
we  may  sketch  in  our  minds  the  progress,  and  watch 
the  position,  of  some  one  of  those  numerous  bands 
of  Teutonic  conquerors  that  had  won  their  way  into 
a  Eoman  province  at  the  fall  of  the  ancient  Western 
empire.  The  sketch  I  am  about  to  give,  is  applica- 
ble to  Romanized  Europe  generally,  not  specially  to 
England.  My  object  at  present  is  to  give  the  leading 
ideas  of  feudalism.  When  we  come  to  apply  them 
to  the  state  of  things  in  this  island,  some  important 
modifications  must  be  introduced  :  but  still  the  gen- 
eral theory  must  be  first  learned.  Here,  again,  in 
order  to  illustrate  and  explain  feudalism,  I  shall  first 
illustrate  its  negation,  allodialism. 

When,  by  degrees,  the  bands  of  Germanic  war- 
riors, who  had  broken  in  upon  Gaul  and  the  other 
Roman  provinces,  began  to  lose  their  spirit  of  fierce 
restlessness,  and  to  wish  for  some  permanent  settle- 
ment in  the  territories  which  they  had  conquered  from 
the  provincials,  and  had  long  fought  for  with  each 
other,  the  ownership  of  land  acquired  a  value  in  their 
eyes,  not  merely  of  a  higher  degree,  but  of  a  wholly 
different  nature,  to  that  which  it  had  in  the  eyes  of 
their  ancestors,  who  dwelt  amid  their  primitive  forests 
and  wildernesses  ;  and  also  to  that  which  it  had  had 
in  their  own,  so  long  as  they  were  a  mere  troop  of 
adventurers,  roving  in  quest  of  plunder,  or  seeking 
fresh  enterprises  for  the  sheer  sake  of  the  excitement 


OF   THE   CONSTITUTION.  71 

Let  us  imagine  an  army  of  Germanic  conquerors  in 
this  mood  for  becoming  inhabitants  of  the  land  which 
they  had  conquered,  and  let  us  mark  what  would  be 
the  natural  results.  Some  part  of  the  territory  might 
probably  be  left  in  the  hands  of  the  conquered  pop- 
ulation ;  but  the  conquerors  would  share  the  rest. 
The  points  to  attend  to,  are  to  see,  first,  how  they 
would  share  it  ;  and  secondly,  what  other  system  of 
parcelling  out  domains  would  soon  ensue.  It  is  to  be 
remembered  that  each  barbaric  king  was  not  the  sov- 
ereign of  an  army  of  subjects  in  the  sense  in  which 
we  employ  the  term  "  sovereign  "  and  "  subject ; " 
but  of  free  and  independent  warriors,  each  of  whom 
would  claim  his  share  of  the  spoil  as  a  right,  as  some- 
thing to  hold  at  his  own  free  will,  not  as  a  boon  revo- 
cable at  a  despot's  caprice.  The  portion  of  land, 
which  the  German  soldier  thus  took,  he  took  as  his 
property  ;  and  his  estate  in  it  was  termed,  by  the 
Franks,  Allodial.  As  the  conquerors  dwelt  among  a 
numerically  superior  population,  their  safety  must  have 
required  them  to  keep  up  their  military  organization  ; 
and  the  subordination,  which  is  the  essence  of  all 
military  discipline,  must  have  greatly  facilitated  the 
change  of  tenure  which,  as  we  shall  next  see,  general- 
ly occurred.* 

I  have  described  the  distribution  of  land  that  took 
place  among  the  free  warriors  who  composed  a  Ger- 
manic army,  and  the  terms  on  which  that  land  was 
usually  assigned  ;  but  all  the  confiscated  territories 
was  not  thus  portioned  out.  Large  demesnes  were 
reserved  for  the  king,  called  fiscal  lands.  Out  of  the 
royal  demesnes  the  sovereigns  granted  lands  to  their 
most  favoured  or  distinguished  personal  followers,  un- 
der the  title  of  fiefs  or  benefices.  Whether  any  defi- 
nite services  were  at  first  affixed  to  a  beneficiary  grant 

«  Soe  Note  8V  to  Robertson's  "View  of  the  State  of  Europe." 


72  RISE    AND    PROGRESS 

is  uncertain  ;  but  in  the  nature  of  things,  some  return 
would  be  expected  from  the  favoured  follower ;  an 
expectation  which  would  soon  ripen  into  a  demand  : 
and  military  service  against  foreign  or  domestic  foes 
would,  in  such  a  state  of  society,  be  the  return  most 
desirable  to  the  grantor,  and  most  easily  and  willingly 
accorded  by  the  receiver.  But  the  ownership  of  the 
fief  did  not  pass  out  of  the  grantor.  The  favoured 
individual  (the  Feudatory,  in  the  technical  phrase) 
received,  not  a  right  of  property,  but  a  mere  license 
of  possession  and  enjoyment,  an  usufructuary  right, 
which  some  authors  suppose  to  have  been  at  first  pre- 
carious and  arbitrarily  revocable  ;  though  the  feuda- 
tory's interest  soon  became  more  certain  and  perma- 
nent, enduring  for  his  life,  unless  forfeited  by  some 
act  of  misconduct  towards  the  giver,  or,  as  we  will 
term  him,  assuming  the  feudal  phraseology,  the  lord. 
And  gradually  fiefs  became  hereditary  ;  though, 
throughout  the  development  of  the  system,  the  ulti- 
mate property  was  and  is  held  to  be  in  the  lord,  as 
evidenced  both  by  legal  forms  and  symbols,  and  by 
the  liabilities  of  the  fief  to  revert  to  the  hand  that 
gave  it — liabilities  which  long  afforded  sharp  and 
practical  symptoms  of  its  original  character. 

As  the  privileges  of  the  feudatory  thus  became 
certain,  so  were  his  duties  systematized,  and  the  con- 
sequences of  his  breach  of  them  defined.  Military 
service,  fidelity  in  counsel,  respect  for  the  person  and 
honour  of  his  lord,  attendance  at  his  lord's  tribunal, 
pecuniary  contribution  in  certain  cases,  formed  the 
essence  of  these  duties,  varying,  however,  in  detail,  at 
different  times  and  in  different  countries. 

Corresponding  duties  of  protection  from  the  lord 
to  the  feudatory  existed  ;  and  the  general  character 
of  the  relation  between  the  lord  and  vassal  may  be 
defined  in  Mr.  Hallam's  words  as  a  mutual  contract 
of  support  and  fidelity. 


OF    THE    CONSTITUTION.  73 

I  have  been  describing  a  case  of  feudalism  in  its 
simplest  form,  where  the  feudatory,  to  whom  the  sov- 
ereign lord  of  the  land  granted  it,  continued  to  hold 
the  land  himself.  But  the  process  of  "  Sub-infeuda- 
tion"  was  common,  and  then  a  far  more  complex 
si  ate  of  things  arose.  The  feudatory,  who  received 
large  grants  of  land  from  his  sovereign,  frequently 
had  dependents  of  his  own,  to  whom  he  carved  out 
portions  of  his  fief,  to  be  held  of  himself  on  terms 
similar  to  those  by  which  he  held  it  of  his  lord.  His 
sub-grantees  thus  became  vassals  under  him,  and  he 
was  a  feudal  lord  to  them.  They  again  might  subdi- 
vide their  sub-fiefs,  and  grant  them  to  others.  And 
the  process  might  be  indefinitely  renewed  as  often  as 
each  subdivided  piece  of  feudal  land  was  capable  of 
still  further  subdivision.  So  that  many  links  in  the 
feudal  chain  might  intervene  between  the  original 
grantor,  or  lord  paramount,  and  the  actual  occupant 
of  the  soil,  who  was  termed  the  Tenant  Paravail. 
Thus,  there  arose  a  seignioral  hierarchy,  specious  in 
appearance,  and  which  Blackstone  has  eulogized,  but 
in  reality  productive  of  very  great  confusion.  For, 
as  it  was  in  respect  of  the  land  that  the  feudal  rela- 
tion arose,  and  not  in  respect  of  any  personal  status 
of  the  individual,  the  same  two  men  might  be  and 
often  were  lords  and  vassals  of  each  other  in  respect 
of  different  lands,  and  an  endless  conflict  of  obliga- 
tions and  rights  were  created. 

Still,  some  protection  was  gained  from  the  system ; 
and  as  times  grew  more  and  more  troubled  after  the 
dissolution  of  the  empire  of  Charlemagne,  the  op- 
pressed and  isolated  allodialist  was  glad  to  seek  even 
temporary  shelter,  by  becoming  one  of  the  liegemen 
of  some  powerful  baron  in  his  neighbourhood.  Fre- 
quently, also,  the  feudal-  barons  possessed  themselves 
with  the  strong  hand  of  the  little  properties  of  their 
feebler  neighbours.  "  During  the  10th  and  llth  cen- 
4 


74  RISE   AND   PROGRESS 

turies,"  says  Mr.  Hallam,  "it  appears  that  allodial 
lands  in  France  had  chiefly  become  feudal ;  that  is, 
they  had  been  surrendered  by  their  proprietors,  and 
received  back  again  upon  the  feudal  conditions  ;  or 
more  frequently,  perhaps,  the  owner  had  been  com- 
pelled to  acknowledge  himself  the  man  or  vassal  of  a 
suzerain,  and  thus  to  confess  an  original  grant  which 
had  never  existed.  Changes  of  the  same  nature, 
though  not,  perhaps,  so  extensive  or  so  distinctly  to 
be  traced,  took  place  in  Italy  and  Germany.  Yet  it 
would  be  inaccurate  to  assert  that  the  prevalence  of 
the  feudal  system  has  been  unlimited ;  in  a  great  part 
of  France  allodial  tenures  always  subsisted,  and  many 
estates  in  the  empire  were  of  the  same  description." 

The  influence  of  the  feudal  system  was  not  lim- 
ited to  the  lay  part  of  the  population,  or  to  the  rural 
districts  of  the  state.  "  The  prelates  and  abbots 
were  completely  f  feudal  nobles ; '  they  swore  fealty  for 
their  lands  to  the  king  or  other  superior  ;  received 
the  homage  of  their  vassals,  enjoyed  the  same  immu- 
nities, exercised  the  same  jurisdiction,  maintained  the 
same  authority  as  the  lay  lords  among  whom  they 
dwelt."  *  Very  frequently  the  bishops  and  abbots 
gave  fiefs  to  knights  on  condition  of  defending  the 
cathedral  or  the  abbey  ;  and  of  supplying  and  leading 
the  contingent  of  troops,  which  the  lord  paramount 
demanded.  The  towns  and  cities  also  had  their 
feudal  lords.  Sometimes  the  rights  of  war  and  con- 
quest gave  to  the  sovereign  or  some  powerful  noble 
the  feudal  seigniory  over  a  civic  community :  some- 
\  imes  the  burghers  voluntarily  placed  their  city  under 
the  feudal  seigniory  of  some  celebrated  chieftain,  or 
neighbouring  baron,  for  the  sake  of  military  protec- 
tion. The  extent  of  the  jurisdiction  of  the  feudal 
lord  over  a  borough  varied  according  to  the  terms 
of  the  original  compact,  where  it  had  been  voluntarily 

*  Hall.  i.  194. 


OF    THE   CONSTITUTION.  75 

created  ;  and  according  to  the  terms  which  the  bur- 
gesses were  able  to  purchase,  where  the  lords'  right 
over  them  was  the  sweeping  right  of  conquest.  The 
modes  by  which  the  boroughs  obtained  their  charters 
of  liberties,  their  municipal  organizations,  and  their 
own  leagues  with  one  another  for  self-protection,  form 
one  of  the  most  interesting  portions  of  mediaeval  his- 
tory, but  can  only  be  glanced  at  here. 

The  spirit  of  the  feudal  system  was  essentially 
aristocratic.  It  required,  indeed,  the  existence  of  a 
single  lord  paramount,  whether  termed  Emperor,  or 
King,  who  was  theoretically  the  supreme  fountain  of 
honour  and  justice,  and  the  motive  centre  of  authority 
both  in  peace  and  war.  But,  in  practice,  the  feudal 
aristocracy  was  an  aggressive  power,  that  ever  sought 
to  aggrandize  itself  at  the  expense  of  monarchy. 
The  process  of  sub-infeudation  was  the  great  cause  of 
this.  Each  baron,  who  girt  himself  with  martial 
vassals  sworn  to  serve  him,  and  who  made  the  reve- 
nues of  provinces  and  cities  his  own,  became  the  foun- 
der of  an  "  imperium  in  imperio."  He  did  not, 
indeed,  often  throw  off  the  semblance  of  allegiance  to 
his  sovereign,  but  he  claimed  and  exercised  the  right 
of  resisting  his  sovereign  by  open  force,  if  the  sover- 
eign carried  his  feudal  prerogatives  too  far,  and  of 
making  formal  war  on  him  as  on  a  stranger,  if  his 
sovereign  did  him  wrong  on  any  matter  unconnected 
.  with  their  feudal  relationship.  He  claimed  and  freely 
exercised  the  right  of  similarly  making  war  on  any  of 
his  fellow-subjects,  on  the  neighbouring  barons  or 
others  who  offended  him.  This  right  of  private  war- 
fare was  the  greatest  affliction  to  feudal  Europe. 
Another  point  on  which  the  feudal  lords  strove  to 
assert  their  independence  of  the  crown,  was  the  right 
of  administering  justice  in  their  own  territories. 
Each  feudal  lord  had  his  baronial  court,  at  which  hia 
military  tenants  attended,  and  where  the  judicial 


76  KISE   AND    PROGRESS 

combat  was  the  favourite  mode  of  determining  con- 
troversies between  the  litigants,  whether  of  a  civil  or 
a  criminal  nature. 

While  the  feudal  aristocracy  was  thus  encroaching 
upon  the  natural  powers  of  the  monarchy,  it  was  no 
less  aggressive  upon  the  commonalty  of  the  land.  The 
feudal  barons  and  their  retainers  gradually  formed 
an  aristocracy  of  birth  as  well  as  of  tenure.  It  has 
been  pointed  out,  in  describing  our  Norman  ancestors 
before  the  Conquest,  how  each  baronial  castle  became 
a  military  school,  wherein  the  exercises  indispensable 
for  the  training  and  duties  of  the  armed  cavalry  of 
those  ages  were  taught  to  the  barons'  sons,  and  to  the 
youths  of  similar  birth  who  were  nurtured  with  them. 
It  is  to  be  observed,  that  every  holder  of  a  fief  by 
military  tenure,  however  small  his  strip  of  land,  was 
a  noble,  as  distinguished  from  the  tiller  of  the  soil, 
the  burgess,  and  the  artisan,  and  even  from  him  who 
held  land  by  a  less  martial  title.  The  superiority  of 
the  feudal  warrior  who  was  thus  trained  up,  and  who 
fought  on  horseback,  protected  by  his  coat-of-mail 
armour,  over  the  common  people  who  fought  on  foot 
and  without  armour  of  defence,  was  effective  in  war, 
and  tended  more  and  more  to  encourage  the  pride  of 
superiority  of  class.  Men  who  belonged  to  this  eques- 
trian rank  (as  the  class  of  feudal  aristocracy  in  its 
early  stage  may  be  correctly  called)  retained  the  same 
feelings  of  elevation,  even  though  they  had  parted, 
with  their  land.  Their  children  did  the  same.  The 
institutions  of  chivalry,  and  the  adoption  of  distinc- 
tive armorial  bearings  by  members  of  particular  fami- 
lies, aided  powerfully  in  creating  this  mixed  feudal 
aristocracy,  based  partly  on  tenure  of  land,  and  part- 
ly on  birth.  The  nobility,  and  the  knights  and  mem- 
b(  rs  of  knightly  families,  made  up  a  warrior  caste, 
who  termed  themselves  gentle  by  birth ;  and  who 
looked  down  on  the  great  mass  of  the  lay  community 


OF    THE    CONSTITUTION.  77 

as  beings  of  almost  inferior  nature.  According  to  the 
favorite  theory  of  the  admirers  of  the  feudal  system, 
men  were  divided  under  it  into  three  classes — war- 
riors, teachers,  and  producers.  The  feudal  nobles  and 
knights  with  their  vassals  and  military  followers  were 
the  first  class  ;  the  clergy  were  the  teacher  class  ;  and 
the  rest  of  the  people  were  the  third,  the  productive 
class.*  Unhappily,  the  general  tendency  of  feudal- 
ism was  to  depress  the  producers.  The  peasantry  and 
the  little  allodialists  were  ground  down  with  servitude, 
and  forced  to  till  the  soil  as  abject  dependants  of  the 
barons  ;  while  the  stores  of  the  merchant  and  the 
earnings  of  the  artizan  were  too  often  treated  as  the 
legitimate  objects  of  knightly  rapacity  and  violence. 
If  we  investigate  feudalism  in  its  social  aspects,  we 
shall  find  ample  cause  for  the  inextinguishable  hatred 
with  which,  as  Guizot  truly  states,  it  has  ever  been 
regarded  by  the  common  people.*  But  this  ought 
not  to  make  us  blind  to  its  brighter  features.  There 
was  much  in  feudalism,  especially  as  developed  in  the 
institutions  of  chivalry,  that  was  pure  and  graceful 
and  generous.  It  ever  acknowledged  the  high  social 
position  of  woman,  it  zealously  protected  her  honour. 
It  favoured  the  growth  of  domestic  attachments,  and 
the  influence  of  family  associations.  It  fostered  liter- 
ature and  science.  It  kept  up  a  feeling  of  indepen- 
dence, and  a  spirit  of  adventurous  energy.  Above 
all,  it  paid  homage  to  the  virtues  of  Courage  and 
Truth  in  man,  and  of  Afiection  and  Constancy  in  wo- 
man. 


*  Weber,  "  Universal  History,"  109. 
7  "  Civilization  en  Europe." 


78  RISE   AND   PROGRESS 


CHAPTER  VIII. 

Distinction  between  Feudalism  as  developed  In  England,  and  Feudalism  as  generally 
developed  on  the  Continent — How  far  did  it  exist  among  the  Saxons  before  the 
Conquest;  how  far  among  the  Normans? — Character  of  William  the  Conqueror. 
— Feudalism  which  he  introduced. — His  checks  upon  the  Baronial  Power.— Great 
Authority  of  the  First  Anglo-Norman  Kings. 

IN  applying  to  English  history  the  description  of  the 
principles  of  feudalism  which  was  given  in  the  last 
chapter,  we  must  remember  several  important  points 
of  distinction  between  this  island  and  the  Continent, 
respecting  the  adoption  and  the  development  of  the 
feudal  system.  The  Eoman  province  of  Britain  un- 
derwent two,  if  not  three,  successive  conquests  by 
nations  of  Germanic  race.  First  there  was  the  Saxon 
conquest,  the  peculiarities  of  which,  as  contradistin- 
guished from  the  Germanic  conquests  of  Eoman 
provinces  on  the  Continent,  have  been  adverted  to  in  a 
previous  chapter.  There  was  afterwards  the  great 
conquest  of  Saxon  England  by  the  Normans,  who 
came  from  semi-Germanized  and  semi-civilized  France, 
and  who  brought  with  them  a  system  of  feudalism 
already  moulded  in  its  essential  parts.  Perhaps  the 
extensive  immigration  of  victorious  Danes,  which 
occurred  in  the  interval  between  the  Saxon  and 
Norman  conquests,  ought  to  be  reckoned  as  a  con- 
quest itself.  In  no  continental  province  of  the  old 
Roman  empire  did  similar  events  occur.  But  the 
distinction  between  feudalism  in  England,  and  feudal- 
ism in  France,  Germany,  Italy,  or  Spain,  is  even  more 


OF   THE    CONSTITUTION.  79 

due  to  the  sagacious  mind  and  resolute  will  of  one 
great  man,  of  William  the  Conqueror  himself. 

Before  we  examine  this,  there  are  two  topics 
which  have  been  already  adverted  to,  hut  which  must 
be  again  glanced  at.  These  are,  first,  the  question 
how  far  feudalism  existed  among  the  Saxons  in  Eng- 
land before  the  Conquest ;  and  secondly,  how  far  did 
it  exist  among  the  Normans  in  Normandy  before  the 
Conquest  ? 

On  the  first  of  these  questions  volumes  have  been 
written,  and  many  more  will  probably  appear.  I  am 
not  going  to  discuss  the  conflicting  theories  that  have 
been  put  forward  ;  and  will  only  observe,  that,  so  far 
as  the  forms  of  feudalism  are  concerned,  there  are 
few,  if  any,  *  of  which  we  cannot  trace  occasional 
precedents  or  analogues  among  the  Anglo-Saxons  ; 
but  that  no  general  elaborate  system  of  feudal  form 
and  ceremonies  existed  in  Saxon  England,  like  that 
which  we  find  here  afterwards.  So  far  as  regards  the 
spirit  of  feudalism,  there  was  certainly  little  here 
before  the  Conquest.  The  Saxon  ceorl  and  his  thane 
were  in  a  far  different  position  relatively  to  each 
other,  from  that  in  which  the  Anglo-Norman  villein 
stood  relatively  to  his  lord.  On  the  whole,  I  would 
affirm  that  there  were  many  institutions  among  the 
Anglo-Saxons  of  a  partially  feudal  nature,  which 
much  facilitated  the  subsequent  introduction  of  feu- 
dalism ;  but  that  the  feudal  system,  as  a  system, 
cannot  be  said  to  have  existed  here  before  the  over- 
throw of  Saxon  independence  at  Hastings. 

With  regard  to  the  other  topic — how  far  feudalism 
prevailed  among  the  Normans  themselves  in  Normandy 
before  they  conquered  this  country,  Sir  Francis  Pal- 
grave,  in  his  recent  history  of  Normandy,  disputes  the 
commonly-received  opinion  of  Sismoridi  and  others, 
that  Duke  Hollo  and  his  Northmen,  when  they  be- 
came permanent  denizens  of  Normandy,  introduced  a 


80  BISE   AND    PROGRESS 

complete  system  of  feudality.*  Palgrave's  contradic- 
tion of  Sismondi  appears  to  be  verbally  right,  and 
substantially  wrong.  There  seems  to  be  no  evidence, 
direct  or  inferential,  of  either  Duke  Eollo,  or  any 
other  Norman  duke,  having  suddenly  composed  and 
introduced  among  his  subjects  an  elaborate  system  of 
feudalism,  with  all  the  laws  and  incidents  of  tenure 
designed  and  provided  for.  But  a  perusal  of  Dudon 
de  St.  Quentin,  of  William  of  Jumiege,  and  Wace, 
abundantly  proves  that  feudalism,  in  all  its  essential 
principles,  either  had  been  established,  or  had  grown 
up  in  Normandy,  before  William  the  Bastard  became 
duke  ;  and  one  great  point,  namely,  that  the  Norman 
peasantry  were  tyrannized  over  as  villeins,  in  the 
fullest  intensity  of  feudalism,  is  shown  by  the  narra- 
tive of  the  insurrection  of  those  unhappy  men  against 
Duke  Kichard  the  Second,  which  I  have  quoted  in  a 
preceding  chapter.  The  clear  evidence  also,  which  we 
possess,  of  how  William  dealt  with  landholders  in 
England,  is  cogent  proof  that  he  was  familiar  with 
the  feudal  tenure  in  his  own  duchy.  I  believe,  on  the 
whole,  that  it  is  substantially  correct  to  say,  that 
William  introduced  the  feudal  system  into  this  coun- 
try, though  some  portions  of  it  were  not  fully  devel- 
oped till  after  his  time,  and  though  Henry  the  Second 
and  his  Justiciars,  when  they  re-organized  the  king- 
dom, after  the  "  shipwreck "  which  it  underwent  in 
Stephen's  time,  probably  made  several  innovations. 

Hallam  correctly  describes  William  the  Conqueroi 
as  a  cold  and  far-sighted  statesman,  of  great  talents, 
with  little  passion  or  insolence,  but  utterly  indifferent 
to  human  suffering.  These  qualities  were  all  emi- 
nently displayed  in  the  way  in  which  he  organized 
feudalism  in  this  country,  adopting  it  so  far  as  it 
tended  to  confirm  his  conquest  and  consolidate  his 
power,  but  modifying  it  from  the  form  in  which  it 
*  P.  673. 


OF    THE    CONSTITUTION.  81 

existed  on  the  Continent,  so  as  to  guard  his  throne 
from  being  overshadowed  by  a  haughty  and  turbulent 
nobility,  in  the  manner  in  which  he  himself  and  the 
other  great  peers  of  France  overawed  the  French 
Crown.  Nor  ought  we,  in  justice  to  William,  to  doubt 
but  that  the  instinctive  appreciation  of  Order,  which 
is  a  characteristic  of  great  men,  must  have  strongly 
influenced  him  in  the  precautions  which  he  took 
against  the  development  here  of  the  baronial  insubor- 
dination, which  filled  the  Continent  with  petty  vio- 
lences and  local  miseries.  Guizot  truly  says  that 
"  there  are  men  whom  the  spectacle  of  anarchy  or  of 
social  stagnation  strikes  and  distresses,  who  are  intel- 
lectually shocked  thereat  as  with  a  fact  which  should 
not  be,  and  who  become  possessed  with  an  uncontrol- 
lable desire  to  change  it  and  to  plant  some  rule,  seme 
uniformity,  regularity,  and  permanency,  in  the  world 
before  them."  And  such  a  man,  notwithstanding  his 
selfishness,  his  pride,  and  his  hardness  of  heart,  was 
William,  Duke  of  Normandy,  and,  by  conquest,  King 
of  England. 

He  established  as  an  universal  rule  throughout  the 
country,  that  he  himself  was  the  supreme  lord  of  all 
the  land.  Such  continues  to  be  the  theory  of  our  law 
to  the  present  hour.  "  All  the  lands  and  tenements 
in  England  in  the  hands  of  subjects,"  says  Coke,  "  are 
holclen  mediately  or  immediately  of  the  king  ;  for  in 
the  law  of  England  we  have  not  properly  allodium."* 

This  feudal  supremacy  of  the  Crown  was  solemnly 
acknowledged  at  the  great  assembly  which  William 
convened  at  Salisbury,  in  1086.  Every  man  of  the 
least  note  who  held  land  in  England  attended  there  :f 
and  they  all  took  the  oath  of  fealty  to  William  as 
their  liege  lord ;  and  each  of  the  vast  multitude 
performed  the  ceremony  of  homage  to  him. 

*  Coke  "Littleton,"  cap.  i.  sect.  1.         t  "Saxon  Chror.."  290. 
4* 


B2  RISE   AND   PROGRESS 

Each  landowner,  whatever  his  rank  or  wealth, 
knelt  openly  and  humbly  before  William  as  he  sat  on 
his  throne.  Each  placed  his  clasped  hands  within 
the  king's  hands,  and  pronounced  the  formal  words, 
"  I  become  your  man,  from  this  day  forth,  of  life, 
of  limb,  and  of  earthly  worship,  and  unto  you  will  be 
true  and  faithful,  and  bear  you  faith  for  the  land  I 
hold  of  you,  so  help  me  God." 

But  while  William  thus  made  feudalism  universal 
in  England,  he  at  the  same  time  made  an  important 
alteration  in  its  system,  by  which  he  strengthened  the 
authority  of  the  Crown,  and  provided  against  his 
great  vassals  acquiring  the  insubordinate  powers  which 
the  feudal  nobility  on  the  Continent  enjoyed.  He  did 
not,  indeed,  prohibit  sub-infeudation.  That  was  not 
done  till  two  centuries  later.  But  William  at  the 
Salisbury  convention  made  all  the  sub-tenants  of  his 
Tenants  in  capite  (i.  e.  of  those  who  held  land  imme- 
diately from  himself),  take  the  oath  of  fealty  to  him, 
the  king,  as  the  lord  paramount  of  all.  Whereas  on 
the  Continent,  the  vassal  who  held  lands  took  an  oath 
of  fealty  to  his  own  immediate  lord  ; — to  the  sover- 
eign, if  he  held  directly  from  him,  but  to  the  mesne 
lord,  if  (as  in  the  great  majority  of  cases)  some  peer 
or  baron,  or  perchance  several  of  them,  intervened 
between  the  Crown  and  the  occupant  of  the  soil. 

Besides  thus  "  breaking  in  upon  the  feudal  com- 
pact in  its  most  essential  attributes,  the  exclusive 
dependence  of  a  vassal  upon  his  immediate  lord/'0 
William  took  other  effective  measures  to  keep  down 
the  influence  of  the  aristocracy,  and  exalt  that  of  the 
Crown.  While  lavishly  generous  in  his  grants  of 
land  to  those  who  had  served  him,  he  took  care  to 
reward  each  leading  Norman  noble  by  estates  scat- 
tered over  different  parts  of  the  kingdom,  and  not  by 
compact  little  principalities,  which  might  serve  as 

*  Hallam,  vol.  ii.  p.  312. 


OF   THE   CONSTITUTION  83 

bases  of  rebellion,  and  form  independent  States.  He 
maintained  also  in  effective  force  the  supreme  author- 
ity of  his  own  royal  tribunal  ;  and  kept  within  as 
narrow  limits  as  possible  the  territorial  jurisdiction 
which  each  lord  of  a  manor  exercised  in  his  court 
baron.  He  had  the  wisdom  also  to  retain  the  Saxon 
popular  tribunals  of  the  county  court  and  the  court 
of  the  hundred,  although  he  diminished  the  dignity 
of  the  county  court  by  withdrawing  ecclesiastical 
matters  from  its  cognizance.  For  all  purposes  of 
temporal  jurisdiction  it  was  preserved.  It  may, 
indeed,  be  said  to  have  acquired  vigour,  and  to  have 
become  more  democratic  in  character  under  the 
Anglo-Norman  kings,  than  it  had  been  before  the 
Conquest.  Under  the  Anglo-Saxon  system  only  the 
thanes,  that  is,  the  gentry,  could  act  and  vote  as 
members  of  the  county  court.  Under  the  Anglo- 
Norman  rule  all  persons  who  held  any  land  by  a  free 
tenure  had  a  right  to  attend  the  county  court  and  to 
take  part  both  as  suitors  and  voters  in  its  proceedings. 
While  these  democratic  courts  of  the  shire  and  the 
hundred  flourished,  and  while  also  the  power  of  the 
king's  courts  was  gradually  extended  (as  was  done  by 
the  Conqueror's  wisest  successors),  it  was  impossible 
for  any  feudal  lord  in  England  to  raise  his  baronial 
court  into  the  judicial  importance  which  was  arroga- 
ted by  each  count  and  seignior  on  the  Continent. 

Such  licensed  anarchy,  as  is  implied  by  a  recog- 
nized right  of  private  warfare,  was  little  likely  to  be 
permitted  under  the  iron  rule  of  William.  Every 
man,  small  or  great,  was  bound  to  keep  the  king's 
peace,  and  was  amenable  to  the  criminal  law  for  the 
breach  of  it.  Instances  of  violence  and  strife  between 
rival  nobles,  that  seem  to  amount  to  private  warfare, 
may  certainly  be  found  in  the  Anglo-Norman  times, 
but  these,  even  when  unpunished,  were  looked  on  as 


84  RISE   AND   PBOGRESS 

breaches  of  the  law,  and  not  as  things  done  in  the 
exercise  of  legal  privileges.* 

Thus,  Norman  feudalism  in  England  secured  more 
order  and  regularity,  and  embodied  a  stronger  central 
governing  power,  than  could  be  maintained  in  the 
ieudal  States  of  Continental  Christendom.  There 
were  other  causes  for  the  predominant  importance  and 
authority  of  Anglo-Norman  royalty.  One  of  these 
was  the  immense  wealth  of  the  Crown,  independently 
of  any  contributions  from  its  subjects.  William  kept 
nearly  1500  manors,  and  almost  all  the  cities  and 
towns  of  any  note,  as  his  own  share  of  the  spoils  of 
the  Conquest.  Another  cause  was  the  readiness  with 
which  the  Saxon  part  of  the  population  ever  served 
the  king  against  any  of  their  Norman  barons  who 
rebelled.  A  third,  and  not  the  least  important  cause, 
was  the  remarkable  intellectual  capacity  and  energy 
which  characterized  not  only  the  Conqueror  himself, 
but  all  his  successors  on  our  throne,  until  John  be- 
came king  of  England. j" 

We  shall  have  occasion  hereafter  to  observe  the 
happy  peculiarity  of  our  Constitution,  by 'which  Eng- 
land secured  the  blessing  of  a  Nobility,  "but  escaped 
the  curse  of  a  numerous  Noblesse,  such  as  overspread 
the  other  feudal  States  of  Europe.  At  present  our 
attention  has  been  limited  to  the  distinctive  points  of 
English  feudality,  prior  to  the  reign  of  John. 

We  may  now  direct  our  attention  to  the  condition 
of  the  population  of  the  land,  at  the  time  when  this 
degenerate  inheritor  of  the  Conqueror's  sceptre  roused 
all  classes  of  freemen  into  a  joint  struggle  against  the 
abused  predominance  of  royal  power. 

*  See  Hallam,  vol.  ii.  p.  345.     The  instances  cited  by  Allen  (on  th« 
Royal  Prerogative,  p.  120)  seem  to  confirm  Hallam's  remarks, 
f  See  Palgrave's  "  Normandy  and  England,"  pp.  704,  707. 


OF    THE    CONSTITUTION.  85 


CHAPTER  IX. 

State  of  the  Mixst  of  the  English  Nation  at  the  Commences  ent  of  the  Thirteenth 
Century. — The  Peasantry. — Villeinage:  its  Incidents:  its  piobahle  Origin  and  Ex- 
tent. ;  and  the  Modes  of  becoming  emancipated  from  it. — State  of  the  Lower  Classes 
in  Towns. — State  of  the  Middle  and  Upper  Classes. — The  various  Tenures  of  Land. 
—State  of  the  Boroughs  after  the  Conquest. — Their  partial  Recovery  of  tbeii 
Liberties. 

OF  the  two  millions  of  human  beings  who  inhabited 
England  in  the  reign  of  John,  a  very  large  number, 
probably  nearly  half,  were  in  a  state  of  slavery. 
Those  who  are  disposed  to  listen  to  tales  about 
"  Merrie  England,"  and  "  the  good  old  times,"  should 
remember  this  fact.  At  the  commencement  of  true 
English  history,  we  start  with  the  labourers  in  abject 
wretchedness.  The  narrative  of  the  changes  in  their 
social  and  political  positions  thenceforward  to  modern 
times,  is  certainly  a  history  of  progressive  ameliora- 
tion, though  lamentably  slow  and  imperfect. 

The  technical  name  for  the  kind  of  slavery  which 
prevailed  in  Anglo-Norman  England  is  Villeinage. 
Some  slaves  were  annexed  to  certain  lands,  and  passed 
into  the  dominion  of  the  heirs  or  purchasers  of  those 
lands  whenever  the  ground,  which  was  considered  the 
more  important  property,  changed  owners.  These  were 
called  "Villeins  regardant."  Others  were  bought  and 
sold,  and  passed  from  master  to  master,  without  re- 
epect  to  any  land.  These  were  termed  "  Villeins  in 
gross  ; "  the  ancient  law  applying  to  them  the  same 


86  EISE   AND   PROGRESS 

uncouth  but  expressive  phraseology,  by  which  it  spoke 
of  rights  of  common  and  other  inanimate  legal  enti- 
ties. 

It  is  probable  that  the  number  of  villeins  in  gross 
was  never  very  considerable :  but  there  are  good 
grounds  for  believing  that,  at  the  commencement  of 
the  thirteenth  century,  the  greater  part  of  the  labour- 
ing agricultural  population  of  England  (including 
not  only  actual  farm-labourers,  but  the  followers  of 
those  handicrafts  which  are  closely  connected  with 
husbandry,  and  were  practised  on  the  land)  were  vil- 
leins regardant,  and  were  looked  on  merely  as  so  much 
of  the  live-stjck  of  the  land  to  which  they  belonged. 

The  best  description  of  the  ancient  state  of  vil- 
leinage is  contained  in  Mr.  Hargreaves'  celebrated 
argument  in  the  case  of  the  Negro  Somerset,  in 
1772  ;  where  he  successfully  maintained  the  noble 
position,  that  a  slave  who  touched  British  ground 
became  free.  He  proved  this  by  showing  that  the 
law  of  England  had  never  [that  is  to  say,  never  since 
the  formation  of  the  Common  Law]  recognized  any 
species  of  slavery,  except  the  ancient  one  of  villein- 
age, then  long  extinct ;  and  that  our  law  had  effectu- 
ally guarded  against  the  introduction  of  any  new  sort 
of  slavery  into  England.  In  doing  this,  Mr.  Har- 
greaves was  led  to  make  the  most  full  and  accurate 
investigation  of  the  nature  of  villeinage  which  has 
ever  been  effected ;  and  the  law-tract  to  which  I 
refer,  is  consequently  of  the  highest  value  to  the  stu- 
dent of  early  English  history. 

"  Slavery,"  says  Mr.  Hargreaves,  "  always  imports 
an  obligation  of  perpetual  service ;  an  obligation 
which  only  the  consent  of  the  master  can  dissolve. 
It  generally  gi\es  to  the  master  an  arbitrary  powei 
of  administering  every  sort  of  correction,  however  in- 
human, not  immediately  affecting  the  life  or  limb  of 
the  slave  ;  and  sometimes  even  these  are  left  exposed 


OF   THE   CONSTITUTION.  87 

to  the  arbitrary  will  of  the  master,  or  they  are  protect- 
ed by  fines,  and  other  slight  punishments,  too  incon- 
siderable to  restrain  the  master's  inhumanity.  It 
creates  an  incapacity  of  acquiring,  except  for  the 
master's  benefit.  It  allows  the  master  to  alienate  the 
person  of  the  slave,  in  the  same  manner  as  other 
property.  Lastly,  it  descends  from  parent  to  child, 
with  all  its  severe  appendages." 

The  condition  of  a  villein  involved  most  of  these 
miserable  incidents.  The  villein's  service  was  uncer- 
tain and  indeterminate,  being  entirely  dependent  in 
nature  and  amount  on  the  caprice  of  his  lord.  In 
the  emphatic  terms  of  some  of  our  old  law-writers, 
"  The  villein  kneio  not  in  the  evening  what  he  was  to 
do  in  the  morning,  but  he  was  bound  to  do  whatever 
he  was  commanded."  He  was  liable  to  beating,  im- 
prisonment, and  every  other  chastisement  that  his 
lord  thought  fit  to  inflict ;  except  that  the  lord  was 
criminally  punishable  if  he  actually  killed  or  maimed 
his  villeins,  or  if  he  violated  the  person  of  his  neif,  as 
a  female  villein  was  termed.  The  villein  was  incapa- 
ble of  acquiring  property  for  himself ;  the  rule  being, 
that  all  which  the  villein  got  became  the  lord's.  He 
usually  passed  to  each  successive  owner  of  the  land, 
as  if  he  had  been  a  chattel  attached  to  it.  But  the 
lord,  if  he  pleased,  could  sever  him  from  the  land, 
and  separate  him  from  his  family  and  children,  by 
selling  him  as  a  villein  in  gross  by  a  separate  deed. 
This  wretched  condition  of  slavery  descended  to  the 
children  of  villein  parents  ;  and  even  if  the  father 
only  was  a  villein,  the  children  inherited  the  same  sad 
lot  from  him.  Indeed,  at  one  time,  the  severity  of 
the  law  was  such,  that  if  a  villein  who  belonged  to 
one  lord  married  a  neif  who  belonged  to  another  lord, 
the  children  of  such  a  marriage  were  equally  divided 
between  the  two  slave-owners.* 

*  See  Hargreave's  "  Jurisconsult  Exercitations,"  vol.  i.  p.  19. 


88  RISE   AND   PROGRESS 

Such  was  the  wretched  state  in  which  we  find  the 
bulk  of  the  English  peasantry  at  the  time  when  the 
full  history  of  our  nation  commences.  We  cannot 
track  the  precise  steps  by  which  the  law  of  villeinage 
had  become  so  established  ;  but  we  have  every  reason 
to  suppose,  that  this  took  place  in  the  interval  be- 
tween the  Conquest  and  the  reign  of  Henry  II.,  when 
we  find  villeinage  completely  settled,*  as  appears  by 
the  book  of  Chief  Justice  Glanville.  The  Norman 
lords  had  then  brought  the  peasantry  of  England 
into  much  the  same  state  as  that  to  which  their  an- 
cestors had  formerly  reduced  the  peasantry  of  Nor- 
mandy. "  By  a  degradation  of  the  Saxon  Ceorls,  and 
an  improvement  in  the  state  of  the  Saxon  Thralls, 
the  classes  were  brought  gradually  near  together, 
till  at  last  the  military  oppression  of  the  Normans, 
thrusting  down  all  degrees  of  tenants  and  servants 
into  a  common  slavery,  or  at  least  into  strict  depend- 
ence, one  name  was  adapted  for  both  of  them  as  a 
generic  term — that  of  villeins  regardant."  This  last 
remark  is  taken  from  Sir  Henry  Ellis's  Introduction 
to  Domesday  Book  ;  and  it  is  from  the  valuable  sta- 
tistics which  he  has  compiled  of  the  number  of  "  Vil- 
lani  "  and  "  Servi  "  therein  recorded,  relatively  to  the 
numbers  of  other  classes  which  are  there  mentioned, 
and  by  bearing  in  mind  the  probable  character  of  the 
parts  of  the  population  not  registered  in  Domesday 
Book,  that  the  best  data  are  to  be  obtained  for  calcu- 
lating the  number  of  villeins  in  the  reign  of  John : 
having  regard,  also,  to  the  probable  deterioration  in 
the  lot  of  the  lower  orders,  which  had  been  going  on 
in  the  interim,  or  at  least  until  the  time  of  Henry  II. 

It  remains  to  mention  the  facilities  which  the  law, 
as  established  in  the  thirteenth  century,  gave  for  the 
emancipation  of  villeins,  and  the  difficulties  which  il 
placed  in  the  way  of  any  accession  to  their  number. 

*  Glanville,  lib.  v.  c.  6. 


OF   THE   CONSTITUTION.  89 

The  lord  might,  at  any  time,  enfranchise  his  vil- 
lein ;  and  there  were  also  many  acts  of  the  lord,  from 
which  the  law  inferred  an  enfranchisement,  though 
none  could  be  proved  to  have  actually  taken  place. 
If  the  lord  treated  the  villein  as  a  freeman,  hy  vest- 
ing the  ownership  of  lands  in  him,  or  by  accepting 
from  him  the  feudal  solemnity  of  homage,  or  by  en- 
tering into  an  obligation  under  seal  with  him,  or  by 
pleading  with  him  in  an  ordinary  action,  the  law  held 
that  the  lord  should  never  afterwards  be  permitted  to 
contradict  his  own  act  by  treating  him  as  a  villein. 
There  were  many  other  modes  of  constructive  enfran- 
chisement. One  of  the  most  important  was,  that  if 
a  villein  remained  unclaimed  by  his  lord  for  a  year 
and  a  day  in  any  privileged  town  (that  is  to  say,  in  any 
town  possessed  of  franchises  by  prescription  or  char- 
ter), he  was  thereby  freed  from  his  villeinage.  More- 
over, in  all  disputes  on  the  subject  of  villeinage  the 
presumption  of  law  was  in  favour  of  liberty.  The 
burden  of  proof  always  lay  upon  the  lord.  And  there 
were  only  two  ways  in  which  villeinage  could  be 
proved.  One  was,  by  showing  that  the  alleged  villein 
and  his  ancestors  before  him  had  been  the  property 
of  the  claimant  and  of  those  through  whom  he  de- 
duced title  for  time  whereof  the  memory  of  man  ran 
not  to  the  contrary  ;  the  other  was,  by  showing  that 
the  alleged  villein  had  solemnly  confessed  his  villein- 
age in  a  court  of  justice.  The  first  of  these  modes 
of  proof  was  always  liable  to  be  defeated  by  showing 
that  the  alleged  villein,  or  some  one  of  his  ancestors, 
through  whom  villeinage  was  said  to  be  traced,  had 
been  born  out  of  wedlock.  For,  as  the  law  held  that 
an  illegitimate  child  was  nullius  filius,  it  also  held 
that  an  illegitimate  child  could  not  possibly  inherit 
the  condition  of  villeinage. 

Thus,  while,  at  the  period  when  we  first  can 
assert  the  common-law  of  the  complete  English  nation 


90  BISE    AND   PROGRESS 

to  commence,  we  find  this  species  of  slavery  so  wide- 
ly established  in  the  country,  we  also  find  the  law 
providing  means  for  its  gradual,  and  ultimately  cer- 
tain, extinction.  We  know  little  of  the  Justiciars  of 
Henry  II.,  in  whose  time  this  branch  of  our  law  can 
first  be  traced  distinctly.  But  if,  as  is  probable, 
Chief  Justice  Glanville  and  Abbot  Samson  of  So. 
Edmunds,*  and  others,  their  fellows  on  the  judicial 
bench,  while  they  found  the  power  of  the  lords  over 
their  villeins  too  firmly  established  to  be  called  in 
question  without  shaking  the  rights  of  property,  de- 
vised and  encouraged  these  numerous  methods,  by 
which  villeinage  could  gradually  be  exlinguished,  they 
ought  to  be  reckoned  among  the  truest  benefactors  of 
their  country  that  England  has  ever  produced. 

Our  means  of  knowledge  respecting  the  condition 
of  the  artizans  and  lower  orders  in  our  cities  and 
towns  at  this  period  are  very  scanty. 

No  large  portion  of  them,  if  any,  can  have  been 
in  a  state  of  slavery.  It  has  been  seen  that  in  Henry 
II/s  time  the  villein  from  the  country,  who  resided, 
unclaimed  by  his  lord,  for  a  year  and  a  day  in  a  town 
with  franchises,  became  thereby  free  ;  and  it  is  diffi- 
cult to  suppose  that  any  one  born  within  the  town 
would  be  in  a  worse  condition.  The  absolute  slaves, 
the  theows  and  thralls  of  the  Saxon  times,  cease  to 
be  mentioned  soon  after  the  Norman  Conquest.  The 
villeins  in  gross  (who  alone  could  be  in  an  analogous 
position  to  that  of  those  Saxon  thralls  who  lived  in 
the  towns)  were  few  in  number  throughout  Anglo- 
Norman  England  ;  nor  am  I  aware  that  any  positive 
mention  of  them  in  the  towns  can  be  traced.f  Gen- 


*  See  the  account  of  Abbot  Samson  in  the  "  Chronicle  of  Jocelin  de 
Brakelonde,"  partly  translated  in  Carlyle's  "  Past  and  Present."  Henry 
IL  employed  Abbot  Samson  as  a  judge. 

t  In  the  Inquisition  made  in  the  Bonugh  of  Ipswich  in  the  second 
year  of  John's  reign,  mention  is  made  of  various  privileges  enjoyed  bj 


OF   THE   CONSTITUTION.  91 

erally  speaking,  we  may  consider  that  villeinage  in 
John's  time  existed  only  among  the  rural  population  ; 
but  it  is  to  be  remembered  that  the  relative  proportion 
of  the  number  of  the  dwellers  in  the  country  to  the 
number  of  the  dwellers  in  the  towns  was  much  great- 
er then  than  it  has  become  in  modern  times. 

The  free  labouring  population,  therefore,  in  John's 
time,  included  the  lower  classes  in  the  towns,  and 
those  portions  of  the  peasantry  who  had  either  escaped 
being  reduced  to  villeinage,  or  had  been  emancipated 
from  it.  This  class  was  gradually  increasing  in  num- 
ber ;  but  the  whole  amount  of  free  labourers  in  Eng- 
land in  the  early  part  of  the  thirteenth  century  can- 
not have  been  considerable.  This  is  proved  by  the 
absence  of  any  complaint  in  the  legislation,  and  of 
any  in  the  law  chronicles  of  those  times,  about  va- 
grant beggars  and  paupers — subjects  which  we  find  so 
repeatedly  noticed  in  the  statutes  and  histories  of  the 
next  and  subsequent  centuries.*  The  villeins  on  each 
estate  were  maintained  by  the  lord  of  it,  like  his  other 

the  Bishop  and  Prior  of  Norwich  and  their  villeins,  by  the  Bishop  and 
Prior  of  Ely  and  all  their  villeins,  by  the  Lord  Roger  de  Bigod  and  his  vil- 
king,  and  by  other  noblemen  and  knights  and  their  villeins.  But  these 
seem  to  have  been  cases  of  non-residents  in  the  borough.  There  is  a 
remarkable  stipulation  respecting  the  villeins  of  some  of  the  privileged 
persons  whom  this  Inquisition  mentions.  It  is  declared  that  if  the  villeins 
are  merchants,  they  are  to  pay  their  custom  towards  the  king  for  their 
merchandise.  This  seems  to  prove  that  in  John's  time  some  villeins  were 
permitted  by  their  lords  to  traffic  on  their  own  account :  as  was  often  the 
case  with  slaves  in  ancient  Rome.  The  gains  of  the  merchant-villein 
would  be  strictly  "  Peculium."  See  the  Ipswich  Inquisition  in  Merewethor 
and  Stephens'  "  History  of  Boroughs,"  vol.  i.  p.  396.  See  also  the  38th 
chapter  in  Britton,  "  De  Purchas  de  Villeyns." 

*  "  It  is  highly  probable  that  from  the  time  of  the  Conquest  till  the 
reign  of  Edward  III.,  England  was  little  troubled  with  either  vagrant 
Beggars  or  paupers.  The  '  patrimony  of  the  poor*  was  found  in  the  pos- 
sessions of  the  church,  and  each  lord  maintained  his  serfs  or  villeins, 
much  as  each  proprietor  of  a  West  India  sugar  plantation  in  more  recent 
times  has  maintained  his  slaves.  It  is  not  till  after  Edward  III.'s  wars  in 
trance,  and  after  the  industry  and  wealth  of  towns  came  into  existence, 
that  we  first  notice  traces  of  any  considerable  class  of  free  labourers."— 
PaMey,  p.  161. 


92  BISE   AND   PROGRESS 

cattle  ;  and  such  freemen  as  became  destitute  found 
relief  from  the  Church  ;  the  ample  endowments  of 
which  continued,  after  the  Conquest,  as  before  it,  to 
provide  means  for  the  maintenance  of  the  afflicted 
and  distressed,  aided  by  the  alms  of  the  laity,  which 
the  clergy  received  and  administered :  the  clergy  being 
in  those  days  the  overseers  and  guardians  of  the  poor. 
As  has  been  already  stated,  County  Courts  and 
the  Hundred  Courts  were  preserved  by  the  Anglo- 
Norman  kings :  and  the  subdivision  of  the  freemen 
of  each  hundred  into  decennas,  and  the  old  Saxon 
regulations  respecting  frankpledge  were  also  in  full 
vigour  in  the  reign  of  John.  The  poorest  free  peas- 
ant was  so  far  vested  with  political  functions,  as  to 
have  the  capacity  and  to  be  under  the  obligation  of 
being  enrolled  in  a  decenna  ;  and  he  co-operated  with 
his  brother  decennaries  in  preserving  the  peace  and 
being  bail  for  each  other.  He  also  attended  as  a 
member  of  the  court  of  the  Hundred  (the  court-leet 
as  it  was  now  termed),  and  participated  in  the  nu- 
merous active  duties  of  local  self-government  that 
were  there  performed.  The  presidents  of  the  Hun- 
dred Courts  had  now,  with  very  few  exceptions,  ceased 
to  be  elective.  Frequently  the  right  of  presiding  in 
the  Hundred  Court  had  become  annexed  to  the  lord- 
ship of  one  of  the  principal  manors  of  the  district- 
In  other  cases,  the  lordship  of  the  Hundred  (or  the 
lordship  of  the  leet,  as  it  is  more  often  called)  had 
been  granted  by  the  Crown  to  some  favourite  baron, 
the  office  being  lucrative  by  reason  of  the  fines  and 
forfeitures  that  accrued  to  its  holder.  But  every  free- 
man was  eligible  to  serve  the  minor  offices  of  local 
self-government,  so  far  as  the  tithing  and  the  hundred 
were  concerned ;  and,  as  a  "  free  and  lawful  man." 
he  also  acted  on  the  inquests  or  juries,  on  which  (as 
we  shall  see  hereafter)  the  king's  judges  frequently 
summoned  the  hundredors. 


OF    THE   CONSTITUTION.  93 

When  we  direct  our  attention  to  the  state  of  the 
upper  and  middle  classes  at  this  period  (exclusively 
of  the  inhabitants  of  the  towns),  we  shall  find  the 
various  incidents  of  the  several  Anglo-Norman  feudal 
tenures  of  land  so  frequently  requiring  allusions  and 
explanations,  that  it  is  best  to  direct  our  attention  to 
them  in  the  first  instance. 

It  is  to  be  remembered  that  the  king  was  and  is 
supreme  feudal  lord  of  all  the  land  in  the  kingdom. 

There  were  three  principal  tenures  by  which  the 
subjects  of  John  held  their  land,  either  immediately 
of  him,  or  immediately  of  some  other  subject,  and  so 
mediately  of  the  king.  These  were,  1st,  tenure  in 
chivalry,  sometimes  called  military  tenure,  or  tenure 
by  knight's  service  ;  2nd,  tenure  in  free  socage,  the 
original  of  our  modern  freehold  tenure  ;  3rd,  tenure 
in  villeinage,  the  original  of  our  modern  copyhold 
tenure.* 

Tenure  in  chivalry  was  the  most  honourable  ;  it 
was  that  by  which  the  barons  and  other  chief  land- 
owners held  their  lands  of  the  Crown,  and  by  which 
they  frequently  made  sub-grants  of  land  to  their  own 
military  followers.  But  the  burdens  of  this  tenure 
were  numerous  and  severe.  They  require  particular 
attention,  in  order  that  we  may  comprehend  the  op- 
pressions at  the  hand  of  the  sovereign  to  which  the 
barons,  who  gained  the  Great  Charter,  were  exposed, 
and  which  caused  them  to  become  the  chiefs  of  a 
great  national  movement  on  behalf  of  the  liberty  of 
England.  Not  that  we  would  deny  or  disparage  the 
renown  justly  due  to  them  for  the  magnanimous  and 
far-sighted  spirit  in  which  they  obtained  protection 
for  the  rights  of  others  besides  their  own  ;  but  we 
must  observe  that  a  community  in  suffering  led  to 

*  Tenure  by  chivalry  included  tenure  by  grand  and  petit  serjeantry. 
For  more  full  information  on  these  points,  see  Reeve's  "  History  of  th« 
English  Law,"  vol.  i.  p.  38.  Stephens'  "  Blackstone,"  vol.  i.  p  1 74. 


94  RISE   AND    PROGRESS 

their  community  in  action  with  the  other  freemen  of 
the  realm,  when  those  primary  constitutional  guaran- 
tees against  arbitrary  oppression  were  obtained,  which 
are  frequently  designated  in  English  history  by  the 
title  of  the  Baronial  reforms. 

The  king,  as  feudal  lord  of  his  barons,  and  other 
military  tenants,  had  a  right  to  exact  from  them  mili- 
tary service,  or  a  pecuniary  payment  in  lieu  thereof  : 
and  it  seems  to  have  become  optional  with  the  king 
to  claim  the  money,  whether  the  vassal  wished  to 
serve  in  person  or  not  ;  and  even  to  exact  both  money 
and  personal  service.  This  war-tax  was  called  "  es- 
cuage,"  or  "  scutage  ; "  and  the  constant  wars  and 
troubles  of  the  times  always  furnished  a  ready  pretext 
lor  demanding  it.  Other  exactions  of  money-pay- 
ments, under  the  title  of  aids,  were  continually  prac- 
tised. Besides  these,  the  heir,  on  succeeding  to  his 
estate,  was  required  to  pay  a  sum  of  money  to  the 
lord,  under  the  title  of  a  "  relief."  If  the  heir  was  a 
minor,  the  lord  took  possession  of  the  land  as  guar- 
dian, and  used  or  abused  it  as  he  pleased,  till  the  heir 
attained  his  majority.  And  even  then  the  heir  was 
obliged  to  pay  a  fine  on  suing  out  his  livery,  that  is, 
on  obtaining  the  delivery  of  the  land  from  his  guar- 
dian to  him.  The  lord  also  had  the  right  of  nomina- 
ting and  tendering  a  wife  to  his  male  ward,  or  a 
husband  to  his  female  ward.  And  if  the  ward  de- 
clined to  marry  the  person  so  selected,  the  ward  for- 
feited to  the  lord  such  a  sum  of  money  as  the  alliance 
was  considered  worth.  The  lord  was  entitled  to  a  fine 
upon  alienation  ;  that  is,  if  the  tenant  disposed  of 
the  land  or  any  portion  of  it  to  any  third  party.  If 
the  tenant  died  without  heirs,  the  land  reverted  to  the 
lord.  This  was  termed  Escheat  ;  and,  as  the  right 
of  devising  real  property  did  not  exist  in  England 
after  the  Conquest  till  Henry  the  Vlllth's  time,  es- 
cheats must  have  been  numerous.  The  lord  also 


OF   THE   CONSTITUTION.  95 

claimed  to  take  back  the  land  whenever  the  tenant 
committed  any  of  a  numerous  list  of  crimes  or  acts 
of  feudal  misconduct.  Such  criminality  or  miscon- 
duct on  the  tenant's  part  was  held  to  work  a  forfeit- 
ure; a  doctrine  which  was  made  peculiarly  severe  in 
England,  where,  "  by  attainder  of  treason  or  felony, 
the  tenant  not  only  forfeited  his  land,  but  his  blood 
was  held  to  be  corrupted  or  stained  ;  whereby  every 
inheritable  quality  was  entirely  blotted  out  and  abol- 
ished, so  that  no  land  could  thereafter  be  transmitted 
from  him  or  through  him  in  a  course  of  descent."* 
The  king's  military  tenants  in  capite  were  also  subject 
to  the  peculiar  burden  of  primer  seisin,  which  did  not 
apply  to  those  who  held  of  inferior  or  mesne  lords. 
Primer  seisin  was  a  kind  of  extra  relief  ;  and  under 
it  the  king,  on  the  death  of  any  of  his  military  ten- 
ants in  chief,  took  of  the  heir  (if  of  full  age)  a  whole 
year's  profits  of  the  lands. 

The  landholders  of  inferior  rank,  who  held  their 
lands,  not  by  military,  but  by  socage  tenure,  and 
whom  we  might  correctly  speak  of  by  a  modern  term 
as  the  yeomanry  of  England,  were  not  liable  to  BO 
many  exactions  from  their  feudal  lord  as  were  the  mili- 
tary tenants.  The  tenant  in  free  socage  was  subject 
to  the  payment  of  aids  for  knighting  the  lord's  son, 
and  providing  a  portion  for  the  marrying  his  eldest 
daughter.  Relief  was  due  on  this  tenure  ;  but  its 
amount  was  fixed  and  limited  to  one  year's  rent  ot 
the  land.  Escheat  and  forfeiture  were  incident  to 
socage  tenure,  and  fines  were  due  upon  alienation. 
The  lord  had  no  right  of  wardship  or  marriage  over 
his  socage  tenants. 

The  holders  of  land  by  villein  tenure  were  origin- 
ally villeins  on  the  domain  of  feudal  lords  of  manors, 
whom  the  indulgence  of  the  lords  permitted  to  remain 
in  the  occupation  of  their  little  strips  of  ground  so 

•  Stephens'  "  Blackstoue,"  voL  L  p.  181. 


96  RISE   AND   PROGRESS 

long  as  they  duly  rendered  the  customary  service. 
When  villeins  were  emancipated,  they  often  continued 
to  reside  on  the  lord's  estate  and  on  the  same  holdings, 
and  they  still  rendered  the  sold  service  to  the  lord, 
which  were  no  longer  variable  at  his  will.  Sometimes, 
also,  men  who  were  freeborn  took  lands  which  had 
been  previously  held  by  villeins,  and  became  bound  to 
continue  the  services  which  the  lord  had  usually  re- 
ceived from  the  servile  occupants  of  such  lands.  By 
degrees  the  customary  expectation,  which  such  holders 
of  manorial  lands  naturally  felt  that  they  and  their 
heirs  would  not  be  removed  so  long  as  they  paid  the 
customary  rent  and  performed  their  customary  duties, 
ripened  into  the  legal  title  of  our  modern  copyhold- 
ers ;  but  it  is  not  probable  that  any  considerable 
number  of  freemen  occupied  land  by  villein  tenure  so 
early  as  the  reign  of  John.* 

William  the  Conqueror  had  kept  among  his  own 
share  of  the  spoil  nearly  all  the  considerable  cities 
and  towns  in  England.  Some  few  had  been  granted 
by  him  to  favourite  Norman  lords.  By  no  class  was 
the  effect  of  the  Conquest  felt  more  severely  than  by 
that  of  the  citizens  and  burgesses.  Their  Norman 
lord  required  of  them  an  annual  rent,  and  various 
dues  and  customs.  He  commonly  farmed  these  out 
to  the  highest  bidder  ;  who,  under  the  title  of  Bailiff, 
became  the  chief  local  ruler  of  the  oppressed  citizens, 
instead  of  their  own  old  elected  port-reeve  or  borough- 
reeve.  By  degrees  they  bought  back  some  of  their 
old  liberties.  Their  Norman  lords  found  that  they 
could  not  extort  so  much  by  force,  as  the  burgesses 
would  voluntarily  pay,  for  the  sake  of  getting  rid  of 
the  obnoxious  petty  tyranny  of  the  bailiff,  and  recov- 
ering their  own  local  self-government.  This  led  the 

*  For  further  explanation  of  tenure  in  villeinage,  see  Stephens' 
"  Blackstone,"  vol.  i.  p.  175;  Reeve's  "Hist  Law,"  vol.  i.  p.  269  ;  and 
Scriven  on  "  Copyholds," 


OF   THE   CONSTITUTION.  97 

king  and  other  lords  of  towns  to  farm  them  to  tW 
burgesses  themselves,  who  paid  a  fixed  rent,  and  were 
thenceforth  said  to  hold  their  town  in  fee-farm,  or  by 
burgage  tenure.  They  also  obtained  charters  entitling 
them  to  elect  their  own  chief  officer,  who  generally 
took  the  Norman  title  of  Mayor.  Other  privileges 
were  similarly  purchased  ;  for,  a  fine  of  money  was 
almost  invariably  the  consideration  on  which  a  charter 
was  granted  ;  and  the  cupidity  of  the  lords  made 
them  seek  pretexts  for  declaring  that  a  borough  had 
forfeited  its  charter,  in  which  case  another  fine  for  a 
re-grant  was  exacted. 

Besides  these  liabilities  to  the  king,  or  other  lord 
of  the  city  or  land,  the  burgesses  were  liable  to  be 
tallaged ;  that  is,  to  have  special  contributions  of 
money  levied  on  them  for  the  lord's  behalf,  in  the 
same  way  that  aids  were  exacted  by  him  of  his  ten- 
ants of  land. 

The  political  rights  (in  judicial  and  other  matters) 
of  the  middle  and  upper  classes,  the  powers  of  the 
sovereign,  and  the  general  legal  system  of  the  age, 
will  be  most  conveniently  considered  when  we  discuss 
the  terms  of  the  Great  Charter  and  its  supplements. 
We  may  at  present  best  proceed  to  a  view  of  the 
circumstances  under  which  Magna  Carta  was  gained 
from  John ;  how  it  was  renewed  under  Henry  III.  ; 
and  how  its  powers  were  extended  and  confirmed  by 
the  final  charter  of  Edward  I. 


93  BISE   AND   PBOGRESff 


CHAPTER  X. 

Evil  Character  of  King  John.  —  Its  Importance  to  our  History.  —  Fortunate  Leas  at 
Normandy.  —  John's  Quarrels  with  his  Clergy  and  with  the  Pope.  —  The  Interdict. 
—  The  Excommunication.  —  .John's  abject  Submission  to  the  Pope.  —  Return  of  Arch- 
bishop Langton  to  England.  —  His  patriotic  Character.  —  He  checks  the  King.  — 
King's  Oath  to  redress  Wrongs.  —  His  repeated  Acts  of  Tyranny.  —  Council  of  the 
Barons.  —  Archbishop  Langton  produces  the  Charter  of  Henry  I.  —  Nature  of  this 
Charter,  and  its  Value.  —  Demands  of  the  Barons  on  the  King.  —  Vain  Intervention 
of  the  Pope.  —  Firmness  of  Archbishop  Langtou.  —  Strength  of  the  National  Party. 
Bunnymede.—  Articuli  Cartae.  —  The  Grant  of  the  Great  Charter. 

THE  Father  of  History  sums  up  the  evil  qualities  of  a 
Despot  in  these  words  :  "  He  subverts  the  laws  and 
usages  of  the  country,  he  violates  women,  and  he  puts 
people  to  death  without  trial."* 

The  character  and  conduct  of  King  John  exem- 
plify every  word  of  this  emphatic  definition.  The 
feudal  law  of  England  (as  it  has  been  described  in 
the  preceding  chapters)  gave  him  oppressively  strong 
powers  over  his  barons  and  other  subjects  ;  but  the 
savage  tyranny  of  John  was  exercised  over  every 
class,  high  and  low,  often  without  the  semblance,  and 
in  open  defiance  of  the  law.  Several  of  his  predeces- 
sors had  solemnly  promulgated  charters,  which  tended 
to  restrain  the  abuses  of  feudal  rule.  These  charters 


*  Nrfjuaio  Tt  Ktvfl  irdrpia,  Kal  fiiura.1  yvvaiica.*,  KTtlvti  re  aKpirovs.  — 
flERonorus,  Thalia,  Ixxx. 

TLe  old  chronicler,  the  Waverley  annalist,  says  of  John,  that  the  old 
laws  and  free  customs  of  the  realm  "  Maxime  suo  tempore  corruptae  nimia 
et  aggravate  fuerant  ;  nam  quosdam  absque  judicio  parium  suorum  ex- 
hffiredebat,  nonnullos  morte  durissima  ooudemnabat.  Uxores  filiasque 
eorum  violabat;  et  itaprolege  ei  erat  tyranuica  voluntas."  —  P.  181. 


OF   THE   CONSTITUTION.  99 

usually  contained  also  general  promises  to  respect  an- 
cient rights,  to  cease  to  follow  evil  practices,  and  to 
maintain  the  old  liberties  of  the  people.  The  kings 
who  gave  them  often  violated  them  ;  but  they  were 
recognitions  (though  vague  and  imperfect  ones)  of 
rights  that  ought  to  limit  the  royal  will :  and  none 
even  of  the  most  arbitrary  of  the  six  first  Anglo-Norman 
kings  professed  to  govern  without  regard  to  legal  rules 
and  restrictions.* 

The  seventh  set  at  nought  every  restraint  of  law, 
either  human  or  divine  ;  and  what  was  afterwards 
said  of  Henry  VIII.  might,  with  more  truth,  have 
been  affirmed  of  John,  that  he  spared  neither  woman 
in  his  lust,  nor  man  in  his  revenge.  But  John  was 
utterly  destitute  of  such  high  abilities  and  resolute 
will  as  signalized  the  haughty  Tudor.  John  mingled 
all  the  qualities  that  inspire  contempt  with  those  that 
provoke  hatred.  His  portrait  has  been  thus  truly  as 
well  as  powerfully  drawn  by  Lingard  : — "  He  stands 
before  us  polluted  with  meanness,  cruelty,  perjury, 
and  murder  ;  uniting  with  an  ambition,  which  rushed 
through  every  crime  to  the  attainment  of  its  object,  a 
pusillanimity  which  often,  at  the  sole  appearance  of 
opposition,  sank  into  despondency.  Arrogant  in  pros- 
perity, abject  in  adversity,  he  neither  conciliated 
affection  in  the  one  nor  esteem  in  the  other.  His 
dissimulation  was  so  well  known,  that  it  seldom 
deceived  ;  his  suspicions  served  only  to  multiply  his 
enemies,  and  the  knowledge  of  his  vindictive  temper 
contributed  to  keep  open  the  breach  betwixt  him  and 
those  who  had  incurred  his  displeasure." 

A  few  only  of  the  specific  instances  of  the  tyranny 
of  this  bad,  but  not  bold  man,  may  be  cited  here  ; 
besides  referring  to  his  murder  of  his  nephew  Arthur, 

*  See  GnLzot's  "  History  of  Representative  Government,"  part  2,  lec- 
ture vL,  on  the  Charters  of  WilHim  the  Conqueror,  Henry  I.,  Stephen, 
and  Henry  IL 


100  RISE   AND    PROGRESS 

which  he  was  believed  by  his  contemporaries  to  have 
perpetrated  with  his  own  hand.*  William  de  Bra- 
osse,  one  of  his  nobles,  had  offended  him  and  escaped 
to  Ireland.  John,  in  1211,  got  into  his  power  De 
Braosse's  wife,  Matilda,  their  son  William,  and  tlleir 
son's  wife.  The  king  then  gratified  his  fiendish 
malignity  by  sending  these  three  prisoners  to  Windsor 
Castle,  where  he  had  them  shut  up  in  a  dungeon  and 
ftarved  to  death. f  In  the  next  year,  one  of  his 
clergy,  Geoffry  of  Norwich,  whom  the  old  chronicler 
terms  a  loyal,  learned,  and  accomplished  man,  came 
under  the  capricious  displeasure  of  the  king.  John 
had  him  seized  and  carried  off  to  Nottingham  Castle, 
where  he  put  him  to  death  with  refined  and  subtle 
tortures.  £ 

Under  his  tyranny  there  was  no  more  safeguard 
for  property  than  for  person.  His  exactions  were 
often  made  with  open  and  undisguised  violence,  § 
though  they  were  also  often  practised  in  the  form  of 
judicial  fines  which  John  levied  upon  men  and  women 
on  the  most  trivial  and  insulting  pretexts. ||  The 
grossness  and  the  frequency  of  his  outrages  on  the 
honour  of  private  families  almost  surpass  belief ;  and 
Eustace  de  Vesci  was.  but  one  of  many,  who,  when 

*  See  for  the  various  narratives  of  the  manner  in  which  John  com- 
mitted this  murder,  the  "Pictorial  History  of  England,"  vol.  i.  p.  519. 

t  Matthew  Paris,  230.  Roger  de  Wendover,  "  Chron.,"  vol.  iii.  p. 
235. 

J  Matthew  Paris,  232.  "  Fee-it  poena  excogitata  usqne  ad  mortem 
torqueri : "  according  to  another  chronicler,  John  had  him  wrapped  in  a 
cope  of  lead  and  left  to  die  of  starvation. 

§  For  instance,  in  1 203,  he  forced  from  his  subjects,  clerical  as  well 
as  lay,  a  seventh  part  of  their  moveables.  See  Roger  de  Wendover,  vol. 
iii.  p.  173,  who  names  the  "  hujus  rapinae  executores."  In  1205,  he  ex- 
torted from  them  a  sum  which  the  chronic  er  terms  "infinite." — Ib.  182. 

.|  TV  Bishop  of  Winchester  paid  a  tun  of  good  wine  for  not  remind- 
ing tne  king  (^uohn)  to  give  a  girdle  to  the  Countess  of  Albemarle  ;  and 
Robert  de  Vaux  five  best  palfreys  that  the  same  king  might  hold  his  peace 
about  Henry  Pinel's  wife.  Another  paid  four  marks  for  leave  to  eat  (pro- 
lijentia  cornedeudi)." — HaUam's  Middle  Ages,  vol.  ii.  p.  317.  Citing  from 
"  Madox's  History  of  the  Exchequer." 


OF   THE   CONSTITUTION.  101 

they  rose  against  John  as  the  public  enemy  of  the 
country,  were  animated  also  by  the  fiercest  indigna- 
tion for  the  wrongs  that  had  been  offered  them  as 
husbands  or  as  fathers,  by  the  brutal  licentiousness  of 
the  king.* 

I  have  dwelt  on  the  subject  of  the  character  of 
John,  because  that  character  had  a  most  important 
effect  on  our  constitutional  history.  Had  he  been 
less  vicious  and  cruel,  it  is  probable  that  the  barons 
would  not  have  leagued  with  the  inferior  freemen  of 
England  against  their  Norman  king.  Had  he  been 
less  imbecile,  it  is  probable  that  the  national  league 
would  have  been  crushed  by  him.  Even  the  foreign 
events  of  John's  reign  (I  mean  those  which  more 
immediately  affected  the  continental  provinces  of  the 
Plantagenet  princes)  were  of  infinite  moment  in  de- 
termining the  future  destinies  of  England.  The 
shames  of  the  sovereign  proved  the  sources  of  the 
country's  glory  and  freedom. 

Foremost  amongst  these  we  may  place  the  fortunate 
loss  of  Normandy.  Philip  Augustus,  the  able  sover- 
eign of  France,  took  advantage  of  John's  murder  of 
his  nephew  Arthur,  to  cite  him  as  Duke  of  Nor- 
mandy, and  a  feudal  vassal  of  the  crown  of  France, 
to  take  his  trial  before  the  high  peers  of  France  on 
the  charge  of  having  murdered  an  arriere  vassal  and 
homager  of  the  French  king.  John  scoffed  at  the 
summons,  but  the  French  Court  passed  sentence  on 
him  of  forfeiture  of  all  the  lands  which  he  held  in 
France  by  homage,  and  Philip  Augustus  carried  that 
sentence  into  speedy  execution.  All  the  provinces 
north  of  the  Loire  which  John's  ancestors  had  be- 
queathed to  him,  were  wrested  from  him,  but  he 

*  See  Walter  de  Hemingburg,  249.  According  to  tradition,  John  had 
caused  the  daughter  of  another  great  baronial  chief  to  be  poisoned,  in 
revenge  for  her  having  resisted  his  dishonourable  solicitations.  See  the 
legends  respecting  Marian  Fitzwalter,  in  Thomson's  "  Magna  Carta,"  p» 
505. 


102  RISE    AND    PROGRESS 

succeeded  in  retaining  Guienne,  Poitou,  and  a  small 
portion  of  Touraine. 

Both  the  amount  of  what  he  lost,  and  the  amount 
of  what  he  retained,  were  important  to  the  constitu- 
tional history  of  England.  After  the  annexation  of 
the  duchy  of  Normandy  to  the  actual  dominions  of 
.the  French  king,  our  barons'  only  homes  were  in 
England.  Henceforth  we  find  them  proud  of  the 
name  of  Englishman,  the  application  of  which  to  a 
man  of  Norman  race,  had  once  been  the  deadliest  of 
insults.  The  Saxon  now  no  more  appears  in  civil 
war  against  the  Norman,  the  Norman  no  longer 
scorns  the  language  of  the  Saxon,  or  refuses  to  share 
with  him  in  the  common  love  for  a  common  country. 
No  part  of  the  community  think  themselves  foreign 
to  another  part.  They  feel  that  they  are  all  one 
people,  and  they  have  learned  to  unite  their  efforts 
for  the  common  purpose  of  protecting  the  rights  and 
promoting  the  welfare  of  all. 

And,  while  the  loss  of  Normandy  thus  happily 
tended  to  promote  the  union  of  aE  the  inhabitants  of 
this  land,  John's  partial  success  in  preserving  Guienne 
and  Poitou  from  the  conquering  arms  of  Philip  Au- 
gustus, aided  materially  in  completing  the  same 
result.  From  these  provinces  he  drew  large  bands  of 
mercenary  soldiers,  whose  support  emboldened  him  to 
defy  the  remonstrances  and  discontent  of  his  English 
barons  ;  and  trusting  to  whom,  he  took  no  pains  to 
form  or  preserve  any  party  for  himself  among  the 
nobility  of  his  kingdom.  The  rapacity  and  the  vio- 
lence which  these  hireling  cut-throats  and  brigands 
from  beyond  the  seas  were  licensed  by  their  sovereign 
to  practise  throughout  England,  came  home  to  the 
middle  and  lower  orders  of  the  English,  and  made 
them  eagerly  co-operate  with  the  barons  against  the 
Crown.  In  the  rural  districts  also  the  oppressive 
cruelties  of  the  forest-laws,  which  John  carried  to  a 


OF   THE  CONSTITUTION.  103 

worse  pitch  than  had  been  the  case  even  under  the 
most  arbitrary  of  his  predecessors,  tended  still  further 
to  exasperate  the  people  against  the  Government  ; 
and  filled  the  forests  with  bands  of  adventurers,  who 
were  ready  to  join  in  any  enterprise  against  the  tyr- 
anny which  had  driven  them  beyond  the  pale  of  the 
law. 

John  had  made  himself  the  enemy  of  the  powerful 
body  of  the  English  clergy,  as  fully  as  he  had  drawn 
on  himself  the  hostility  of  his  lay  subjects.  He  levied 
pecuniary  contributions  on  his  ecclesiastics  as  arbitra- 
rily and  as  rapaciously  as  he  pillaged  the  rest  of  the 
nation.  A  dispute  which  broke  out  in  1205,  respect- 
ing the  election  to  the  see  of  Canterbury,*  involved 
John  in  dissension  with  Innocent  III.,  who  refused  to 
consecrate  the  nominee  of  John.  The  Pope  caused 
Cardinal  Langton  to  be  elected  by  some  of  the  Can- 
terbury monks,  who  had  been  deputed  to  Rome,  and, 
after  a  vain  attempt  to  obtain  the  English  king's  con- 
sent, he  consecrated  Langton  at  Viterbo  in  Italy,  as 
Primate  of  England. 

Stephen  de  Langton,  to  whom  we  are  more  deeply 
indebted  than  to  any  other  individual  for  the  obtain- 
ing of  the  Great  Charter,  was  an  Englishman  by 
birth,  but  had  been  chiefly  educated  in  the  University 
of  Paris,  where  he  acquired  the  highest  reputation  for 
learning  and  piety.  Pope  Innocent  III.  had  invited 
him  to  Borne,  and  conferred  on  him  the  dignity  of 
Cardinal  ;  and  he  now  sought  to  place  him  at  the 
head  of  the  Church  of  England.  John  fiercely  re- 
fused to  permit  Langton  to  set  foot  in  England  ;  and 
wreaked  his  vengeance  on  the  Canterbury  monks,  by 
seizing  their  lands  and  possessions,  and  driving  them 
all  out  of  England.  The  Pope  in  return  placed  Eng- 

*  The  conflicting  claims  and  rights  of  the  Augustine  monks  at  Can- 
terbury, of  the  suffragan  bishops,  of  the  king,  and  of  the  pope  in  thii 
election,  are  very  fairly  stated  by  Lingard,  vol.  iii..  p.  19,  et  seq. 


104  BISE   AND   PEOGRESS 

land  under  an  interdict,  on  which  John  confiscated  aH 
the  ecclesiastical  property  in  the  kingdom.  When 
the  interdict  had  lasted  a  year,  the  Pope  pronounced 
sentence  of  excommunication  against  John :  and 
finally,  in  1213,  Pope  Innocent  assumed  and  exercised 
the  right  of  deposing  John,  and  solemnly  exhorted  all 
Christian  princes  and  harons  to  unite  in  dethroning 
him  as  an  impious  and  unworthy  king.* 

These  spiritual  thunders  of  papal  Borne  were  (like 
the  Amphictyonic  decrees  in  ancient  Greece,  and  the 
edicts  of  the  modern  German  diets)  of  little  efiect, 
when  those  against  whom  they  were  levelled  main- 
tained vigorous  union  at  home,  and  were  threatened 
by  the  arms  of  no  formidable  foe  from  abroad :  but 
they  were  truly  terrible  when  there  was  disunion  in 
the  State  which  was  the  mark  of  their  operation;  and 
when  a  powerful  and  ambitious  prince,  like  Philip  of 
Macedon  in  the  classic  ages,  or  Philip  Augustus  in 
John's  time,  was  ready  to  undertake  the  execution  of 
the  sentence  for  the  secret  purposes  of  his  own  ag- 
grandizement. King  John  found  himself  menaced 
with  invasion  from  France  ;  and  though  he  assembled 
an  army  of  60,000  men  ("  sufficient,"  says  the  old 
historian,  "  to  have  defied  all  the  powers  of  Europe 
had  they  been  animated  with  love  for  their  sover- 
eign"), John  knew  that  all  his  subjects  hated  him 
with  a  hate  which  he  had  richly  earned,  and  there 
was  in  the  vast  host  around  him  scarcely  a  man  on 
whose  fidelity  he  could  depend.  The  ruffian  in  his 
disposition  now  suddenly  was  changed  into  the  craven. 
He  had  an  interview  at  Dover  with  the  Pope's  con- 
fidential Nuntio,  Pandulph,  and  signed  a  deed -(May 
13,  1213)  whereby  he  consented  to  admit  Langton  as 
Archbishop  of  Canterbury,  to  restore  the  refugees 

*  See  "  Lingard,"  voL  iii.,  notes  at  pp.  16  and  35,  for  the  grounds  of 
these  temporal  pretensions  of  the  popes.  See  generally  on  the  subject, 
Hallara's  chapter  on  "The  Ecclesiastical  Power  during  the  Middle  Ages." 


OF   THE   CONSTITUTION.  105 

both  of  his  clergy  and  laity  to  their  possessions  and 
offices,  to  liberate  those  whom  he  had  imprisoned,  and 
to  make  full  restitution  for  the  injuries  which  he  had 
wantonly  inflicted.  On  condition  of  the  king's  doing 
this,  the  sentences  of  interdict  and  excommunication 
were  to  be  revoked. 

Had  John's  submission  ended  here,  there  would 
have  been  nothing  in  the  terms  to  censure,  whatever 
we  might  think  of  the  motives  which  caused  him  to 
make  it.  But,  rushing  from  arrogant  defiance  of  the 
Koman  pontiff  into  abject  servility,  on  Ascension  Eve, 
Wednesday,  May  15,  1213,  the  king,  by  a  formal 
deed,  gave  up  his  kingdom  to  the  Pope,  to  take  it 
back  as  the  Pope's  vassal,  and  under  the  obligation  of 
paying  a  yearly  tribute  of  1000  marks.  By  this 
mean  betrayal  of  his  duty  towards  the  State,  of  which 
he  was  the  kingly  head,  John  won  for  himself  the 
partizanship  of  the  Pope,  but  he  increased  the  aliena- 
tion and  disgust  of  his  subjects,  ecclesiastics  as  well 
as  laymen.  Hallam*  has  truly  observed  that  we  are 
deeply  indebted  to  the  English  clergy  for  their  zeal  in 
behalf  of  liberty  during  the  reign  of  John's  succes- 
sor; and  the  same  remark  may  be  made  with  refer- 
ence to  the  exertions  of  our  churchmen  in  the  nation's 
cause  in  the  time  of  John  himself.  Cardinal  Langton 
is  the  most  illustrious  example  of  patriotism  and 
wisdom  that  the  history  of  the  Charter  supplies.  On 
.  this  prelate's  return  to  England,  and  installation  in 
his  archbishopric,  in  1214,  he  showed  immediately 
that,  though  he  was  one  of  the  Pope's  cardinals,  he 
was  no  mere  emissary  of  an  Italian  priest,  but  a  true- 
hearted  Englishman,  to  whom  his  country's  honour 
and  his  country's  freedom  were  most  dear,  and  one 
whom  no  threats  of  either  temporal  or  ecclesiastical 
superiors  could  deter  from  the  path  of  duty.  Before 


*  "Middle  Ages,"  voL  il  p.  327. 
5* 


106  RISE   AND   PBOGRES8 

he  would  grant  absolution  to  the  king  at  their  firsi 
meeting,  he  compelled  him  to  swear  that  he  would 
abolish  all  illegal  customs  ;  that  he  would  restore  the 
good  laws  of  his  predecessors,  especially  King  Ed- 
ward's ;  that  he  would  give  just  and  true  judgment 
to  all  men,  and  that  he  would  restore  to  all  their 
rights.*  A  council  was  also  convened  at  St.  Albans, 
at  which  Fitz-Peter,  the  chief  justiciary,  presided  on 
behalf  of  the  king.  Proclamations  were  then  issued 
in  the  king's  name,  ordering  the  observance  of  the 
laws  granted  by  Henry  I.,  and  denouncing  the  pun- 
ishment of  death  against  all  sheriffs,  officers  of  the 
royal  forests,  and  other  ministers  of  the  crown,  who 
should  exceed  the  strict  limits  of  their  authority. 
The  mention  here  of  the  laws  of  Henry  I.,  instead  of 
those  of  Edward  the  Confessor,  is  somewhat  remark- 
able. Possibly  it  was  made  out  of  deference  to  the 
prejudices  of  some  of  the  Anglo-Norman  barons,  who 
may  have  preferred  the  name  of  a  Norman  lawgiver 
to  that  of  a  Saxon  one,  and  who  may  not  yet  have 
learnt  the  necessity  of  merging  all  differences  of  race 
between  themselves  and  their  fellow  inhabitants  of 
this  island.  The  laws  referred  to  may  have  been 
those  which  we  now  read  in  the  collection  entitled  the 
laws  of  Henry  I.,f  which,  though  not  compiled  and 
issued  by  that  monarch,  is  an  unquestionably  ancient 
collection,  and  is  believed  to  have  been  formed  by 

*  "  It  became  the  favourite  cry  to  demand  the  laws  of  Edward  the 
Confessor  ;  and  the  Normans  themselves,  as  they  grew  dissatisfied  with 
the  royal  administration,  fell  into  these  English  sentiments.  But  what 
these  laws  were,  or  more  properly,  perhaps,  these  customs  subsisting  in 
the  Confessor's  age,  was  not  very  distinctly  understood.  So  far,  however, 
was  clear,  that  the  rigorous  feudal  servitude,  the  weighty  tribute  upon 
tiin,  poorer  freemen  had  never  prevailed  before  the  Conquest  In  claim- 
ing the  laws  of  Edward  the  Confessor,  our  ancestors  meant  but  the  redresi 
of  grievances,  which  tradition  told  them  had  not  always  existed." — Hair- 
loafs  Middle  Ayes,  vol.  ii.  p.  321. 

t  See  this  collection  in  the  first  volume  of  "  The  Ancient  Laws  and 
Institutes  of  England,"  p.  504,  et  seq. 


OF   THE   CONSTITUTION.  107 

Borne  judge  or  lawyer  during  the  reign  of  the  sover- 
eign whose  name  it  bears.  It  consists  principally  of 
extracts  from  the  laws  of  various  Saxon  kings.  One 
of  its  provisions  deserves  special  notice  ;  it  is  that 
which  ordains  that  "  every  man  is  to  be  tried  by  his 
peers."* 

While  this  council  was  being  held,  John  had 
Bailed  on  an  expedition  against  France.  Incensed  at 
the  refusal  of  his  barons  to  follow  him,  he  returned  to 
England,  and  began  to  avenge  himself  upon  them 
according  to  his  custom  by  leading  the  armed  force  of 
foreign  mercenaries,  which  he  had  brought  back  with 
him,  through  the  parts  of  his  own  kingdom  where  his 
barons'  estates  lay,  as  if  it  had  been  an  enemy's 
country,  and  pillaging  and  burning  without  mercy. 
He  had  marched  up  from  the  south  coast  as  far  as 
Northampton,  when  the  archbishop  met  him  and 
rebuked  him  to  his  face.  "  This  barbarous  violence," 
uaid  the  prelate,  "  is  a  direct  breach  of  your  oath. 
Your  barons  must  be  judged  and  tried  by  their  peers, 
and  not  subjected  to  military  execution."  John 
fiercely  answered,  "  Rule  you  the  Church,  and  leave 
me  to  govern  the  State/  He  proceeded  on  hits  vindic- 
tive career  as  far  as  Nottingham,  where  Langton  again 
braved  his  wrath  and  commanded  him  to  desist.  The 
archbishop  accompanied  his  rebuke  by  threatening  to 
excommunicate  every  follower  of  John  who  should 
dare  to  draw  his  sword  again  in  such  impious  warfare. 
John  now  gave  way,  and  for  the  sake  of  appearance 
summoned  those  whom  he  had  accused  to  appear 
before  him,  or  his  justices,  in  his  Court. 

Langton  and  the  barons  knew  John's  character 
too  well  to  believe  that  this  submission  to  legal 
restraint  on  the  king's  part  would  be  permanent ;  and 
on  the  25th  of  August,  1213,  at  the  great  council  of 
the  prelates  and  the  barons,  which  was  held  at  St 

*  Ibid.  534. 


108  RISE   AND   PROGRESS 

Paul's,  in  London,  the  archbishop  took  measures  foi 
forming  an  effective  confederacy  for  curbing  the  powei 
of  the  oppressor. 

The  ostensible  purpose  of  the  council  was  to  settle 
the  amount  of  compensation  which  the  king  was  to 
pay  to  those  who  had  been  exiled  during  the  late 
troubles,  and  whose  possessions  the  king  had  despoiled ; 
but  Langton  addressed  them  on  the  subject  which 
they  all  had  most  at  heart — the  obtaining  of  some 
security  against  the  tyranny  of  John  for  the  future. 
The  archbishop  told  them  that  he  had  discovered  a 
charter  of  King  Henry  I.  which  they  might  force  the 
king  to  re-establish,  and  thereby  regain  their  liberties. 
They  answered  with  joyous  acclamations,  and  the 
archbishop  administered  an  oath  to  them,  by  which 
each  bound  himself  to  strive  for  their  liberties,  if  need 
were,  even  to  the  death. 

This  charter  of  Henry  I.  had  been  granted  by 
that  sovereign  when  he  first  seized  the  crown  to  the 
exclusion  of  his  elder  brother  Kobert,  and  when  he 
was  desirous  to  win  the  favour  of  the  Saxon  as  well 
as  of  the  Norman  inhabitants  of  England.  It  con- 
tains specific  provisions  against  the  abuse  of  the  right 
of  wardship,  against  the  abuse  of  the  right  of  claim- 
ing aids,  and  against  other  of  the  chief  feudal  oppres- 
sions to  which  the  military  tenants  of  the  crown  were 
liable  at  the  hands  of  the  king.  It  gives  also  a  gen- 
eral promise  to  observe  the  good  laws  of  Edward  the 
Confessor.*  Copies  of  this  charter  had  been  deposited 
in  the  principal  monasteries  ;  and  Blackstone  f  has 
doubted  the  possibility  of  its  having  become  so  gener~ 
ally  unknown  in  John's  time  that  its  discovery  by  the 
archbishop  should  have  been  such  a  matter  of  tri- 

*  See  this  charter  in  the  first  volume  of  the  "  Statutes  of  the  Realm," 
and  in  the  note  to  Blackstone's  "  History  of  the  Charters,"  p.  8  of  the 
Introduction. 

f  Ibid.  p.  8,  et  seq. 


OF   THE   CONSTITUTION.  109 

mnpli  and  novelty  as  the  old  chroniclers  relate.  If, 
however,  we  call  to  mind  the  devastations  that  took 
place  throughout  England  during  Stephen's  reign, 
and  the  negligence  often  shown  by  ecclesiastical  "bodies 
with  regard  to  the  preservation  of  even  their  own 
muniments,  we  may  readily  understand  that  copies 
of  the  charter  of  Henry  I.  may  have  become  scarce, 
and  almost  inaccessible,  in  the  lapse  of  a  century.  ]f 
we  recollect  also  how  few  laymen  had  even  enough 
education  to  read,  we  shall  not  be  surprised  at  the 
general  ignorance  which  prevailed  in  1213  as  to  the 
contents  of  the  ancient  charter  which  Archbishop 
Langton  spoke  of. 

By  admitting  the  truth  of  the  old  narrative  re- 
specting this  charter  of  Henry  I.,  we  by  no  means 
detract  from  the  original  value  of  the  Great  Charter 
of  John.  The  older  instrument  bears  no  comparison 
with  the  latter,  with  regard  either  to  explicitness,  to 
fulness,  or  to  comprehensiveness,  in  providing  for  the 
rights  of  all  classes  of  freemen.  But  still  the  charter 
of  Henry  I.  applied  specifically  to  many  of  the  feu- 
dal grievances  under  which  John's  barons  smarted; 
it  furnished  them  with  a  legal  authority  to  appeal 
against  the  king  ;  and  it  gave  to  the  archbishop,  and 
the  other  chiefs  of  the  great  movement  in  behalf  of 
the  national  liberties,  an  invaluable  moral  basis  for 
their  operations.  There  is  in  the  minds  of  most  civ- 
ilized men  a  natural,  a  laudable  reluctance  to  advance 
their  interests,  or  even  to  defend  themselves,  by  the 
introduction  of  mere  political  novelties  :  but  the  same 
men  will  act  cheerfully  and  zealously  when  they  have 
the  sanction  of  ancient  ordinance  on  their  side.  The 
Restorer  has  a  lighter  task  and  a  lighter  conscience 
than  the  Innovator  :  at  least  it  is  so  at  the  com- 
mencement of  his  task ;  though,  in  order  to  restore 
with  effect,  it  frequently  becomes  necessary  to  add,  to 
alter,  and  to  reorganize.  Langton,  and  other  leading 


110  BISE   AND   PBOGBES8 

spirits  of  the  baronial  party,  may  have  early  foreseen 
the  necessity  of  doing  much  more  than  revive  the 
decayed  legal  safeguards  of  a  former  century  ;  but, 
for  the  mass  of  their  party,  the  demand  for  the  res- 
toration of  the  laws  and  liberties  of  Henry  I.  was  an 
effective  rallying  cry,  till  it  was  changed  at  Kunny- 
mede  for  a  fuller  and  a  nobler  strain. 

During  the  greater  part  of  the  next  year  John 
was  engaged  in  unsuccessful  warfare  on  the  Conti- 
nent ;  and  in  the  autumn  he  returned  to  England, 
soured  with  disappointment,  and  bent  on  wreaking  on 
his  domestic  enemies  the  vindictiveness  and  the  mal- 
ice which  had  been  baffled  and  humiliated  abroad. 
He  had  brought  back  some  bands  of  soldiers  of 
fortune  from  France  ;  and  with  these  "  alien  knights, 
cross-bow-men,  and  hired  followers,  who  came  with 
arms  and  horses  to  molest  England"  (as  the  Great 
Charter  afterwards  expressively  described  them),  John 
recommenced  his  old  course  of  spoliation  and  outrage. 
His  chief  justiciary,  Fitz-Peter,  one  of  the  very  few 
ministers  who  exercised  any  control  over  John,  had 
died  during  the  last  year.  John,  who  had  stood  in 
some  awe  of  this  man,  exclaimed  with  joy  when  he 
heard  of  his  death,  "  It  is  well.  Fitz-Peter  will  now 
shake  hands  again  with  our  late  Archbishop  Hubert 
in  hell,  for  assuredly  he  will  find  him  there.  By 
God's  teeth  I  am  now  for  the  first  time  true  lord  and 
king  of  England."  He  showed,  on  his  return  to 
England  in  the  autumn  of  1214,  what  he  meant  by 
true  lordship  and  kingship.  Plunging,  without  re- 
straint or  shame,  into  the  Bacchanalia  of  despotism, 
the  king  continued  to  pillage,  to  banish,  and  to  slay, 
and  to  perpetrate,  with  every  aggravation  of  ribald 
insolence,  those  violations  of  domestic  honour,  by 
which  far  tamer  spirits  than  those  of  our  Anglo-Nor- 
man barons  have  oft  been  goaded  into  insurrection. 
On  the  20th  of  November,  St.  Edmund's  day. 


OF    THE   CONSTITUTION.  Ill 

1214,  the  earls  and  barons  of  England  met  again  at 
St.  Edmund's  Bury.  Archbishop  Langton,  who  was 
the  guiding  spirit  of  the  assembly,  came  among  them. 
The  primate  of  England  stood  at  the  high  altar  ;  and 
thither  advanced  each  peer  according  to  seniority,  and, 
laying  his  hand  on  the  altar,  swore  solemnly  that  if 
the  king  would  not  consent  to  acknowledge  the  rights 
which  they  claimed,  they  would  withdraw  their  fealty 
and  make  war  upon  him  till,  by  a  charter  under 
his  own  seal,  he  should  confirm  their  just  demands. 
"  And  at  length,"  says  the  old  chronicler,*  "  it  was 
agreed  that,  after  the  nativity  of  our  Lord,  they 
should  come  to  the  king  in  a  body,  to  desire  a  confir- 
mation of  the  liberties  before-mentioned  ;  and  that 
in  the  meantime  they  were  to  provide  themselves  with 
horses  and  arms  in  the  like  manner,  that  if  the  king 
should  perchance  break  throngh  that  which  he  had 
specially  sworn  (which  they  well  believed),  and  recoil 
by  reason  of  his  duplicity,  they  would  instantly,  by 
capturing  his  castles,  compel  him  to  give  them  satis- 
faction." 

Accordingly,  in  the  beginning  of  the  following 
year,  the  barons  appeared  before  the  king1',  fully  pre- 
pared both  to  state  and  to  enforce  the  national  will. 
The  same  old  historian  thus  nanates  the  scene  ; — 

"  The  Demand  for  the  Liberties 
"  of  England  made  by  the  Barons." 

"  In  the  year  of  grace  one  thousand  two  hundred 
and  fifteen,  which  is  the  seventeenth  year  of  King 
John,  the  same  king  held  his  court,  for  the  space  of 
one  day,  at  Worcester,  where  he  had  been  at  the  feast 
of  the  Birth  of  our  Lord.  Thence  he  came  with  all 
haste  to  London,  and  was  received  at  New  Temple 

*  Matthew  Paris,  p.  176. 


112  BISE   AND   PROGRESS 

Inn.  Here,  then,  came  to  the  king  the  aforesaid 
great  barons,  in  a  very  resolute  guise,  with  their  mili- 
tary garb  and  weapons,  insisting  on  the  liberties  and 
laws  of  King  Edward,  with  others  for  themselves,  the 
kingdom,  and  the  Church  of  England,  to  be  granted 
and  confirmed  according  to  the  Charter  of  King  Hen- 
ry the  First.  They  asserted,  moreover,  that  at  the 
time  of  the  king's  absolution  at  Winchester,  those 
ancient  laws  and  liberties  were  promised,  and  that  he 
was  bound  to  observe  them  by  especial  oath.  But 
the  king  finding  the  barons  so  resolute  in  their  de- 
mands, was  much  concerned  at  their  impetuosity. 
When  he  saw  that  they  were  furnished  for  battle,  he 
replied,  that  it  was  a  great  and  difficult  thing  which 
they  asked,  from  which  he  required  a  respite  until 
after  Easter,  that  he  might  have  space  for  considera- 
tion ;  and  if  it  were  in  the  power  of  himself  or  the 
dignity  of  his  crown,  they  should  receive  satisfaction. 
But  at  length,  after  many  proposals,  the  king  unwil- 
lingly consented  that  the  Archbishop  of  Canterbury, 
the  Bishop  of  Ely,  and  William  Marshal  should  be 
made  sureties,  and  that  by  reason  of  their  interces- 
sion, on  the  day  fixed  he  would  satisfy  all."* 

During  the  interval  which  he  had  thus  gained, 
John  sought  to  strengthen  himself  by  detaching  the 
clergy  from  the  barons.  He  granted  (Jan.  15, 1215) 
a  charter  to  the  Church  of  England,  by  which  he  se- 
cured to  her  the  free  election  of  the  bishops,  and 
ordained  that  when  a  bishop  had  been  thus  elected 
and  presented  to  the  king,  the  king's  consent  should 
not  be  refused  unless  lawful  reasons  could  be  assigned 
for  the  refusal.  He  took  another  measure,  which 
shows  how  much  the  influence  of  the  yeomanry  and 
the  other  freemen  of  England  below  the  rank  of  the 
barons  had  increased,  and  how  conscious  John  was 

*  Matthew  Paris,  p.  176      Thomson's  "Essay  on  Magna  Charta," 
p.  24,  and  notes. 


OF   THE   CONSTITUTION.  113 

that  they  also  were  ready  to  act  against  him.  He 
ordered  the  sheriffs  to  summon  the  freemen  of  each 
shire  and  tender  to  them  a  new  oath  of  allegiance. 
He  confessed  at  the  same  time  how  little  he  had  a 
right  to  rely  on  the  loyalty  of  his  subjects,  by  seeking 
the  special  protection  which  the  church  gave  in  those 
ages  to  the  person  and  the  property  of  Crusaders. 
John  took  the  cross  on  the  2nd  February,  1215,  and 
vowed  to  lead  an  army  into  Palestine  for  the  recovery 
of  the  Holy  Sepulchre  from  the  Infidels. 

None  of  these  manoeuvres  was  successful.  The 
national  union  against  him  was  firm  ;  and  his  pre- 
tence for  preparing  for  the  Crusades  only  revived  the 
contemptuous  hatred  of  those  who  remembered  his 
lion-hearted  brother  Richard,  and  John's  treasonable 
practices  against  that  true  Crusader.  Nor  did  he 
gain  any  advantage  in  this  time  of  need  from  his 
ignominious  subjection  to  the  Pope.  John  applied  to 
Innocent  for  help  against  his  barons,  and  the  pontiff 
openly  sided  with  his  vassal  king.  A  peremptory  and 
vehement  letter  came  from  Eome  to  Archbishop  Lang- 
ton,  wherein  the  Pope  directed  his  cardinal  to  support 
John  in  upholding  the  rights  of  the  crown,  and  to 
reconcile  the  barons  to  their  sovereign.  In  another 
letter  the  Pope  censured  the  violence  of  the  barons, 
and  ordered  them  to  act  towards  their  sovereign  with 
humility.  But  neither  the  English  primate  nor  the 
English  barons  succumbed  to  this  intervention  of 
Rome.  Langton  continued  to  advise  the  barons ; 
they  continued  their  preparations  ;  and  when  Easter 
approached,  the  confederates  fixed  their  muster-placo 
at  Stamford,  in  Lincolnshire.  The  time  within  which 
the  king  was  t.o  answer  their  demands  was  now  on  the 
point  of  expiring  ;  and  in  Easter  week  the  barons 
assembled  at  Stamford  with  a  force  of  2000  armed 
knights  to  receive  or  to  enforce  the  king's  ratification 
of  the  liberties  which  they  claimed.  John  was  at 


114  RISE   AND   PROGRESS 

Oxford.  He  did  not  summon  the  barons  thither,  noi 
did  he  venture  to  go  to  them,  but  he  sent  William 
Marshal,  Earl  of  Pembroke,  the  Earl  Warenne,  and 
Archbishop  Langton  to  Brackley,  in  Northampton- 
shire (whither  the  barons  had  marched),  to  demand 
a  more  specific  account  of  those  laws  and  liberties 
which  were  so  earnestly  desired.  The  confederates 
delivered  a  schedule  containing  the  articles  of  their 
claims.  The  deputies  returned  with  this  to  Oxford, 
and,  when  Langton  was  explaining  to  the  king  what 
was  demanded  of  him,  John  broke  out  into  one  of  his 
fits  of  impotent  phrenzy — "And  why  do  they  not 
demand  my  crown  also  ?  "  exclaimed  he,  with  his  cus- 
tomary blasphemous  oath — "  By  God's  teeth  I  will 
not  grant  them  liberties  that  will  make  me  a  slave." 
He  sent  back  his  deputies  to  the  barons'  camp  with 
orders  to  offer  an  appeal  to  the  Pope,  as  feudal  lord 
of  England.  The  barons  refused  it.  Pandulph,  the 
papal  legate,  was  in  England  at  the  king's  court,  and 
he  now  called  on  Archbishop  Langton  to  excommu- 
nicate the  barons  as  mutineers  against  the  Holy  See. 
Langton  calmly  replied  that  he  was  better  acquainted 
than  Pandulph  was  with  the  pontiff's  real  purposes, 
and  added,  that  unless  John  instantly  dismissed  his 
foreign  mercenaries,  he,  the  archbishop,  would  excom- 
municate them.  John  now  threw  himself  into  the 
Tower  of  London,  and  endeavoured  to  secure  the  pos- 
session of  the  capital.  The  barons  acted  as  if  open 
war  had  commenced.  They  proclaimed  themselves 
the  army  of  God  and  Holy  Church,  and  elected  Kob- 
ert  Fitzwalter,  Earl  of  Dunmore,  as  their  general. 
Their  numbers  increased  rapidly  ;  and  the  middle 
classes  of  England,  both  the  yeomanry  in  the  country 
and  the  burghers  in  the  towns,  now  actively  aided 
them,  and  rendered  their  success  certain.  It  was  no 
longer  a  rising  of  one  order  of  the  community,  but  a 
movement  of  all  the  freemen  of  the  land.  John 


OF    THE   CONSTITUTION.  115 

seems  to  have  felt  the  formidable  importance  which 
it  thus  assumed,  and  he  endeavoured  to  detach  the 
barons  from  the  national  cause,  by  offering  special 
terms  in  favour  of  themselves  and  their  immediate 
retainers.*  But  the  baronial  chiefs  felt  their  true 
position  as  champions  of  a  nation's  rights,  and  disre- 
garded the  insidious  offers  of  the  king.  The  army  of 
God  and  the  Holy  Church  moved  first  against  North- 
ampton Castle,  which  was  garrisoned  by  some  of 
John's  foreign  mercenaries.  The  garrison  refused  to 
capitulate  ;  and  the  national  army,  unprovided  with 
engines  for  a  regular  siege,  moved  upon  Bedford,  where 
they  were  gladly  received.  Thence  they  marched  to 
the  Metropolis,  where  they  arrived  on  the  24th  of 
May — the  gates  were  open  to  them — the  citizens  ea- 
gerly welcomed  them  as  national  deliverers,  and  the 
Mayor  of  London  took  his  position  in  the  army  as  one 
of  the  principal  leaders.  John  had  fled  from  the 
Tower,  and  was  now  at  Odiham,  in  Hampshire,  whith- 
er only  seven  knights  had  followed  him.  He  now  in 
despair  sent  the  Earl  of  Pembroke  to  London  to  in- 
form the  confederates  that  he  was  ready  to  comply 
with  their  petitions,  and  to  desire  that  a  place  and 
time  might  be  named  for  a  conference.  The  barons 
answered,  "  Let  the  day  be  the  9th  of  June, — the 
place,  Runnymede." 

This  Holy  Land  of  English  liberty  is  about  half- 
way from  Odiham  to  London,  and  it  is  a  grassy  plain, 
of  about  160  acres,  on  the  south  bank  of  the  Thames, 
between  Staines  and  Windsor.  Various  derivations 
are  given  for  the  name  :  that  of  the  antiquary  Leland 
affirms  it  to  have  been  so  called  from  the  Saxon  word 
Rune,  or  council,  and  to  mean  the  council  meadow, 
having  been  used,  in  the  old  Saxon  times,  as  a  place 

*  See  his  letters  patent,  dated  the  10th  of  May,  which  are  extant  in 
tho  rolls  in  the  Towe?,  and  which  are  cited  by  Blackstone  in  the  note  at 
d.  xxxi  of  the  introduction  to  Blankstone's  tract  on  the  Charter. 


116  RISE   AND   PROGRESS 

of  assembly.  No  column  or  memorial  marks  the  spot 
where  the  primary  triumph  of  the  English  Constitu- 
tion was  achieved  ;  but  the  noble  lines  of  Akenside 
should  be  present  to  the  mind  of  all  who  tread  the 
plain  of  Bunnymede. 

INSOBIPTION  FOE    A   COLITMN   AT  BtrNBTMEDE. 

"Thou,  who  the  verdant  plain  dost  traverse  here 
"While  Thames  among  his  willows  from  thy  view 
Retires  ;  O  stranger,  stay  thee,  and  the  scene 
Around  contemplate  well.     This  is  the  place 
Where  England's  ancient  barons,  clad  in  arms 
And  stern  with  conquest,  from  their  tyrant  king 
(Then  render'd  tame)  did  challenge  and  secure 
The  Charter  of  thy  freedom.     Pass  not  on 
Till  thou  hast  bless'd  their  memory,  and  paid 
Those  thanks  which  God  appointed  the  reward 
Of  public  virtue.     And  if  chance  thy  house 
Salute  thee  with  a  father's  honoured  name, 
Go,  call  thy  sons ;  instruct  them  what  a  debt 
They  owe  their  ancestors ;  and  make  them  swear 
To  pay  it,  by  transmitting  down  entire 
Those  sacred  rights  to  which  themselves  were  J»orn." 

On  the  8th  of  June,  the  day  before  that  named 
for  the  conference  at  Bunnymede,  the  king  came  to 
Merton,  in  Surrey.  But  the  conference  was  adjourned 
to  the  15th,  the  Monday  following,  and  the  king  in 
the  meantime  proceeded  to  Windsor  ;  thence,  on  the 
last  appointed  day,  being  Trinity  Monday,  A.  D.  1215, 
the  king,  with  his  scanty  train  of  personal  followers, 
came  to  Bunnymede,  where  the  barons  and  their  host 
were  now  encamped. 

On  the  part  of  John  stood  only  eight  bishops, 
fifteen  noblemen  and  knights,  and  Pandulph,  the 
papal  legate :  even  of  these  many  were  only  seem- 
ingly his  adherents,  or,  as  the  old  chronicler  expres- 
sively phrases  it,  they  stood  "  Quasi  ex  parte  Re- 
gis."* The  opposite  side  of  the  plain,  that  nearest 

*  W.  de  Hemingburg. 


OF   THE    CONSTITUTION.  ]  17 

to  where  the  town  of  Egham  now  stands,  was  white 
with  the  tents  of  an  army,  which  the  old  chronicler 
terms  a  host  above  all  price.*  "  It  is  needless/'  says 
another  old  writer,  'l  to  enumerate  the  barons  who 
composed  the  army  of  Grod  and  the  Holy  Church  ; 
Ihey  were  the  whole  nobility  of  England."  Negotia- 
tions were  formally  opened  and  continued  for  several 
days,  during  which  it  is  probable  that  the  chief  mana- 
gers of  the  conference  on  either  side  may  have  retired 
to  the  little  island  a  short  distance  higher  up  the 
river,  which  still  bears  the  name  of  Magna  Carta 
Island,  and  which  tradition  points  to  as  the  scene  of 
these  memorable  deliberations. 

The  conference  was  not  concluded  till  Friday,  the 
19th  of  June.  Articles  or  heads  of  agreement  were 
first  drawn  up,  which  were  afterwards  regularly  em- 
bodied in  the  form  of  a  Charter.  These  "  Articuli 
Magnae  CartaB  "  are  still  preserved,  and  deserve  at- 
tentive comparison  with  the  Charter  for  which  they 
served  as  the  rough  draft,  but  which  does  not  always 
strictly  accord  with  them.  When  the  Charter  itself 
was  prepared,  the  royal  seal  was  solemnly  affixed  to  it 
before  the  Congress  at  Kunnymede,  and  it  bears  date 
as  of  the  first  day  of  that  conference,  the  15th  June, 
in  the  year  of  our  Lord  1215,  being  149  years  after 
the  Norman  Conquest,  and  seven  centuries  and  a  half 
after  the  reputed  era  of  the  landing  of  the  first  of  our 
Saxon  ancestors  in  this  island. 

*  "  Exercitun  icBstimabilem  confecere.r     Matthew  Paris,  p.  253, 


MS  RISE   AND   PROGRESS 


CHAPTER  XL 


M&gna  Carta,— Gtncral  Distribution  of  its  Clauses.— Text  of  the  Great  Charter,  aad 
Comments. 

BEFORE  setting  out  the  text  of  the  Great  Charter,  it 
may  be  useful  to  premise  some  general  summary  of 
its  contents.  A  very  little  attention  is  necessary  to 
show  how  unjust  it  is  to  speak  of  it  as  a  mere  piece  of 
class-legislation,  obtained  by  the  barons  for  their  own 
especial  interests.  Guizot*  well  asks,  "  How  is  it 
possible  that  at  least  a  third  of  the  provisions  of  the 
Charter  should  have  related  to  promises  and  guaran- 
tees made  on  behalf  of  the  people,  if  the  aristocracy 
had  only  aimed  at  obtaining  that  which  would  benefit 
themselves  ?  We  have  only  to  read  the  Great  Char- 
ter in  order  to  be  convinced  that  the  rights  of  all 
three  orders  of  the  nation  are  equally  respected  and 
promoted/' 

By  the  three  orders  which  Guizot  here  speaks  of 
are  meant  the  clergy,  the  nobility,  and  the  general 
commonalty  of  the  freemen  of  the  realm.  It  will  be 
seen,  also,  that  the  serfs  are  not  wholly  neglected  in 
it.  And  inasmuch  as  the  serfs  were  always  capable 
of  being  raised  into  freemen,  and  the  process  of  their 
emancipation  was  continually,  though  gradually,  go- 
ing forward,  the  Great  Charter,  by  providing  for  the 

*  "  History  of  Representative  Government,"  pt.  ii.  lect.  7. 


OF    THE   CONSTITUTION.  119 

rights  of  all  freemen,  provided  in  effect  for  the  rights 
of  all  the  inhabitants  of  the  land. 

Part  of  the  Great  Charter  consists  of  clauses 
relating  to  the  clergy.  These  are  not  numerous,  as 
the  charter  granted  by  John  in  the  preceding  Febru- 
ary had  provided  for  ecclesiastical  interests.  The 
Great  Charter  confirms  these  provisions. 

With  respect  to  the  rights  of  the  laity,  the  Great 
Charter  determines  with  careful  precision  the  amount 
of  feudal  obligation  to  which  the  barons  and  other 
immediate  tenants  of  the  crown  should  be  thenceforth 
subject.  Involved  in  those  provisions  is  the  all-im- 
portant article  about  convening  the  great  council  of 
the  realm.  It  will  be  seen  also  that  the  Charter 
binds  the  barons  to  allow  their  sub-vassals  the  same 
mitigations  of  the  feudal  burdens  which  the  barons 
acquired  for  themselves  from  the  king.  In  behalf  of 
members  of  the  rest  of  the  free  community,  special 
clauses  will  be  found  by  which  the  ancient  customs 
and  liberties  of  cities  and  boroughs  are  secured,  and 
by  which  protection  for  the  purposes  of  commerce 
is  given  to  foreign  merchants.  Thus  far  the  Char- 
ter legislates  specially  for  the  interests  of  separate 
classes,  though  several  of  the  clauses  of  this  kind, 
besides  redressing  an  immediate  and  partial  wrong, 
contain  also  the  germ  of  a  permanent  and  national 
right.  But  the  Great  Charter  is  also  rich  with  clauses 
which  have  for  their  object  the  interests  of  the  nation 
as  a  whole.  It  provides  for  the  pure,  the  speedy,  the 
fixed,  and  uniform  administration  of  justice.  It 
prohibits  arbitrary  imprisonment  and  arbitrary  pun- 
ishment of  any  kind.  It  places  the  person  and  the 
property  of  every  freeman  under  the  solemn  and 
sacred  protection  of  free  and  equal  law. 

Lastly,  it  contains  clauses  of  a  temporary  charac- 
ter for  the  redress  of  the  immediate  evils  of  the  time, 
as  by  directing  the  removal  of  the  king's  foreign 


120  EISE   AND   PKOGRE8S 

mercenaries  from  England,  and  it  provides  guarantees 
for  King  John  adhering  to  its  obligations,  by  appoint- 
ing a  baronial  council  who  were  to  be  the  guardians 
of  the  Charter,  and  who  were  to  be  armed  with  the 
most  ample  powers  for  redressing  any  infraction  of  it 
which  the  king  or  his  ministers  might  attempt. 

The  translation  of  the  Great  Charter,  which  will 
now  be  laid  before  the  reader,  is  accompanied  by 
explanatory  notes ;  but  full  comment  on  its  most 
important  passages  is  reserved  until  we  shall  have 
seen  the  form  which  the  Charter  assumed,  as  adopted 
and  ratified  by  Henry  III.  and  subsequent  monarchs, 
and  until  we  shall  have  also  examined  the  confirma- 
tion which  it  received  from  Edward  the  First. 

ittagna  (Harta. 

JOHN,  by  the  grace  of  God  King  of  England,  Lord 
of  Ireland,  Duke  of  Normandy,  Aquitaine,  and 
Count  of  Anjou,  to  his  Archbishops,  Bishops,  Ab- 
bots, Earls,  Barons,  Justiciaries,  Foresters,  Sher- 
iffs, Governors,  Officers,  and  to  all  Bailiffs,  and  his 
lieges,  greeting.  Know  ye,  that  we,  in  the  pres- 
ence of  God,  and  for  the  salvation  of  our  soul,  and 
the  souls  of  all  our  ancestors  and  heirs,  and  unto 
the  honour  of  God  and  the  advancement  of  Holy 
Church,  and  amendment  of  our  Realm,  by  advice 
of  our  venerable  Fathers,  STEPHEN,  Archbishop  of 
Canterbury,  Primate  of  all  England  and  Cardinal 
of  the  Holy  Roman  Church,  HENRY,  Archbishop 
of  Dublin,  WILLIAM  of  London,  PETER  of  Win- 
chester, JOCELIN  of  Bath  and  Glastonbury,  HUGH 
of  Lincoln,  WALTER  of  Worcester,  WILLIAM  of 
Coventry,  BENEDICT  of  Rochester,  Bishops ;  of 
Master  PANDULPH,  Sub-Deacon  and  Familiar  of 
our  Lord  the  Pope,  Brother  ATMERIC,  Master  of 
the  Knights-Templars  in  England  ;  and  of  the 


OF   THE   CONSTITUTION.  121 

Noble   Persons,    WILLIAM   MARESCALL,    Earl   of 
Pembroke,  WILLIAM,  Earl  of  Salisbury,  WILLIAM, 
Earl  of  Warren,  WILLIAM,  Earl  of  Arundel,  ALAN 
DB   GALLOWAY,    Constable  of  Scotland,  WARIN 
FITZ  GERALD,  PETER  FITZ  HERBERT,  and  HU- 
BERT DE  BURGH,  Seneschal  of  Poitou,  HUGH  DE 
NEVILLE,  MATTHEW  FITZ  HERBERT,  THOMAS  BAS- 
SET, ALAN   BASSET,   PHILIP  OF   ALBINEY,  EGB- 
ERT DE  KOPPELL,  JOHN  MARESCHAL,  JOHN  FITZ 
HUGH,  and  others  our  liegemen,  have,  in  the  first 
place,  granted  to  God,  and  by  this  our  present 
Charter  confirmed,  for  us  and  our  heirs  for  ever  : 
1.  That  the  Church  of  England  shall  be  free,  and 
have  her  whole  rights,  and  her  liberties  inviolable  ; 
and   we   will   have   them   so   observed,  that  it  may 
appear  thence,  that  the  freedom  of  elections,  which 
is  reckoned  chief  and   indispensable  to  the   English 
Church,  and  which  we  granted  and  confirmed  by  our 
Charter,  and  obtained  the  confirmation  of  the  same 
from  our  Lord  the  Pope  Innocent   III.,  before   the 
discord  between  us  and  our  barons,  was  granted  of 
mere  free  will ;  which  Charter  we  shall  observe,  and 
we  do  will  it  to  be  faithfully  observed  by  our  heirs 
for  ever.     2.  We  also  have  granted  to  all  the  freemen 
of  our  kingdom,  for  us  and  for  our  heirs  for  ever,  all 
the  underwritten  liberties,  to  be  had  and  holden  by 
them  and  their  heirs,  of  us  and  our  heirs  for  ever  :  If 
any  of  our  earls,  or  barons,  or  others,  who  hold  of  us 
in  chief  by  military  service,  shall  die,  and  at  the  time 
of  his  death  his  heir  shall  be  of  full  age,  and  owes  a 
relief,*  he  shall  have  his  inheritance  by  the  ancient 
relief ;  that  is  to  say,  the  heir  or  heirs  of  an  earl,  for 
a  whole  earldom,  by  a  hundred  pounds  ;  the  heir  or 
heirs  of  a  baron,  for  a  whole  barony,  by  a  hundred 
pounds  :  the  heir  or  heirs  of  a  knight,  for  a  whole 

*  Explanations  of  the  feudal  terms  in  this  and  the  six  next  clauaei 
trill  he  found  at  pp.  71-76,  supra. 

6 


122  RISE   AND   PROGRESS 

knight's  fee,  by  a  hundred  shillings  at  most ;  and 
whoever  oweth  less  shall  give  less,  according  to  the 
ancient  custom  of  fees.  3.  But  if  the  heir  of  any 
such  shall  be  under  age,  and  shall  be  in  ward  when  he 
comes  of  age,  he  shall  have  his  inheritance  without 
relief  and  without  fine.  4.  The  keeper  of  the  land 
of  such  an  heir  being  under  age,  shall  take  of  the 
land  of  the  heir  none  but  reasonable  issues,  reasonable 
customs,  and  reasonable  services,  and  that  without 
destruction  and  waste  of  his  men  and  his  goods;  and 
if  we  commit  the  custody  of  any  such  lands  to  the 
sheriff,  or  any  other  who  is  answerable  to  us  for  the 
issues  of  the  land,  and  he  shall  make  destruction  and 
waste  of  the  lands  which  he  hath  in  custody,  we  will 
take  of  him  amends,  and  the  land  shall  be  committed 
to  two  lawful  and  discreet  men  of  that  fee,  who  shall 
answer  for  the  issues  to  us,  or  to  him  to  whom  we 
shall  assign  them  :  and  if  we  sell  or  give  to  any  one 
the  custody  of  any  such  lands,  and  he  therein  make 
destruction  or  waste,  he  shall  lose  the  same  custody, 
which  shall  be  committed  to  two  lawful  and  discreet 
men  of  that  fee,  who  shall  in  like  manner  answer  to 
us  as  aforesaid.  5.  But  the  keeper,  so  long  as  he  shall 
have  the  custody  of  the  land,  shall  keep  up  the  houses, 
parks,  warrens,  ponds,  mills,  and  other  things  pertain- 
ing to  the  land,  out  of  the  issues  of  the  same  land  ; 
and  shall  deliver  to  the  heir,  when  he  comes  of  full 
age,  his  whole  land,  stocked  with  ploughs  and  car- 
riages, according  as  the  time  of  wainage  shall  require, 
and  the  issues  of  the  land  can  reasonably  bear.  6. 
Heirs  shall  be  married  without  disparagement,  and  so 
that  before  matrimony  shall  be  contracted  those  who 
are  near  in  blood  to  the  heir  shall  have  notice.  7.  A 
rvidow,  after  the  death  of  her  husband,  shall  forthwith 
and  without  difficulty  have  her  marriage  and  inherit- 
ance ;  nor  shall  she  give  anything  for  her  dower,  or 
her  marriage,  or  her  inheritance,  which  her  husband 


OF   THE   CONSTITUTION.  123 

and  she  held  at  the  day  of  his  death  ;  and  she  may 
remain  in  the  mansion  house  of  her  husband  forty 
days  after  his  death,  within  which  term  her  dower 
shall  be  assigned.  8.  No  widow  shall  he  distrained 
to  marry  herself,  so  long  as  she  has  a  mind  to  live 
without  a  husband  ;  but  yet  she  shall  give  security 
that  she  will  not  marry  without  our  assent,  if  she  holds 
of  us  ;  or  without  the  consent  of  the  lord  of  whom  she 
holds,  if  she  hold  of  another.*  9.  Neither  we  nor  our 
bailiffs  shall  seize  any  land  or  rent  for  any  debt,  so  long 
as  the  chattels  of  the  debtor  are  sufficient  to  pay  the 
debt ;  nor  shall  the  sureties  of  the  debtor  be  distrained  so 
long  as  the  principal  debtor  is  sufficient  for  the  payment 
of  the  debt  ;  and  if  the  principal  debtor  shall  fail  in  the 
payment  of  the  debt,  not  having  wherewithal  to  pay 
it,  then  the  sureties  shall  answer  the  debt  ;  and  if 
they  will  they  shall  have  the  lands  and  rents  of  the 
debtor,  until  they  shall  be  satisfied  for  the  debt  which 
they  paid  for  him,  unless  the  principal  debtor  can 
show  himself  acquitted  thereof  against  the  said  sure- 
ties. 10.  If  any  one  have  borrowed  anything  of  the 
Jews,f  more  or  less,  and  die  before  the  debt  be  satis- 
fied, there  shall  be  no  interest  paid  for  that  debt, 
so  long  as  the  heir  is  under  age,  of  whomsoever  he 
may  hold  ;  and  if  the  debt  fall  into  our  bands  we  will 
only  take  the  chattel  mentioned  in  the  deed.  11. 
And  if  any  one  shall  die  indebted  to  the  Jews,  his 
wife  shall  have  her  dower  and  pay  nothing  of  that 
debt  :  and  if  the  deceased  left  children  under  age, 


*  By  the  old  law,  grounded  on  the  feudal  exactions,  a  woman  could 
cot  be  endowed  without  a  fine  paid  to  the  lord,  neither  could  she  marry 
again  without  his  licence,  lest  she  should  contract  herself,  and  so  convey 
iart  of  the  feud  to  the  lord's  enemy.  This  licence  the  lords  took  care  to 
be  well  paid  for,  and,  as  it  seems,  would  sometimes  force  the  dowager  to 
a  second  marriage  in  order  to  gain  the  fine. — 2  Bl.  Com.  135. 

t  Some  curious  information  respecting  the  position  of  the  Jews  in 
England  at  this  and  other  early  periods  will  be  found  in  Tovey"a  "  Anglia 
Judaica."  Oxford,  1738. 


124  RISE   AND   PROGRESS 

they  shall  have  necessaries  provided  for  them,  accord- 
ing to  the  tenement  of  the  deceased  ;  and  out  of  the 
residue  the  debt  shall  be  paid,  saving  however  the 
service  due  to  the  lords  ;  and  in  like  manner  shall  it 
be  done  touching  debts  due  to  others  than  the  Jews. 
12.  No  scutage  or  aid  shall  be  imposed  in  our  king- 
dom, unless  by  the  general  council  of  our  kingdom  ; 
except  for  ransoming  our  person,  making  our  eldest, 
son  a  knight,  and  once  for  marry'ng  our  eldest 
daughter  ;  and  for  these  there  shall  be  paid  a  rea- 
sonable aid.  In  like  manner  it  shall  be  concerning 
the  aids  of  the  City  of  London.  13.  And  the  City 
of  London  shall  have  all  its  ancient  liberties  and 
free  customs,  as  well  by  land  as  by  water  :  further- 
more we  will  and  grant,  that  all  other  cities  and 
boroughs,  and  towns  and  ports,  shall  have  all  their 
liberties  and  free  customs.  14.  And  for  holding  the 
general  council  of  the  kingdom  concerning  the  assess- 
ment of  aidSy  except  in  the  three  cases  aforesaid, 
and  for  the  assessing  of  scutages,  we  shall  cause  to 
be  summoned  the  archbishops,  bishops,  abbots,  earls, 
and  greater  barons  of  the  realm,  singly  by  our 
letters.  And  furthermore  we  shall  cause  to  be  sum- 
moned generally  by  our  sheriffs  and  bailiffs,  all 
others  who  hold  of  us  in  chief,  for  a  certain  day, 
that  is  to  say,  forty  days  before  their  meeting  at 
least,  and  to  a  certain  place  ;  and  in  all  letters  of 
such  summons  we  will  declare  the  cause  of  such  sum- 
mons. And  summons  being  thus  made,  the  business  of 
the  day  shall  proceed  on  the  day  appointed,  according 
to  the  advice  of  such  as  shall  be  present,  although  all 
that  were  summoned  come  not.*  15.  We  will  not  for 
the  future  grant  to  any  one  that  he  may  take  aid  of  his 
owu  free  tenants,  unless  to  ransom  his  body,  and  to 

"  FnL  comments  on  these  important  clauses  will  be  found  in  chap- 
ter 13,  where  the  origin  of  our  Parliament  is  discussed. 


OF   THE   CONSTITUTION.  125 

make  his  eldest  son  a  knight,  and  once  to  marry  hia 
eldest  daughter  ;  and  for  this  there  shall  be  only  paid 
a  reasonable  aid.  16.  No  man  shall  be  distrained  to 
perform  more  service  for  a  knight's  fee,  or  other  free 
tenement,  than  is  due  from  thence.  17.  Common 
pleas  shall  not  follow  our  court,  but  shall  be  holden 
in  some  place  certain.*  18.  Assizes  of  novel  dissei- 
sin, and  of  mort  d'ancestor,  and  of  darrien  present- 

*  By  the  ancient  Saxon  constitution  there  was  "mly  one  superior 
court  of  justice  in  the  kingdom,  and  that  court  had  cc  gnizance  hoth  of 
civil  and  spiritual  causes,  viz.  the  witenagemote  or  general  council,  which 
assembled  annually,  or  oftener,  wherever  the  king  kept  his  Christmas, 
Easter,  or  Whitsuntide,  as  well  to  do  private  justice  as  to  consult  upon 
public  business.  At  the  Conquest  the  ecclesiastical  jurisdiction  was 
diverted  into  another  channel,  and  the  Conqueror  established  a  constant 
court  in  his  own  hall,  thence  called  by  Bracton  and  other  ancient  authors 
aula  regia,  or  aula  regis.  This  court  was  composed  of  the  king's  great 
officers  of  state  resident  in  his  palace,  and  usually  attendant  on  his  per- 
son ;  such  as  the  lord  high  constable  and  lord  mareschal,  who  chiefly  pre- 
sided in  matters  of  honour  and  of  arms,  determining  according  to  the 
law  military  and  the  law  of  nations.  Besides  these,  there  were  the 
lord  high  steward  and  lord  great  chamberlain,  the  steward  of  the  house- 
hold, the  lord  chancellor,  whose  peculiar  business  it  was  to  keep  the  king's 
sea],  and  examine  all  such  writs,  grants,  and  letters  as  were  to  pass  under 
that  authority,  and  the  lord  high  treasurer,  who  was  the  principal  advi- 
ser in  all  matters  relating  to  the  revenue.  These  high  officers  were 
assisted  by  certain  persons  learned  hi  the  laws,  who  were  called  the  king's 
justiciars  or  justices,  and  by  the  greater  barons  of  Parliament,  all  of 
whom  had  a  seat  in  the  aula  regia,  and  formed  a  kind  of  court  of  appeal, 
or  rather  of  advice,  in  matters  of  great  moment  and  difficulty ;  all  these 
in  their  several  departments  transacted  all  secular  business  both  criminal 
and  civil,  and  likewise  the  matters  of  the  revenue ;  and  over  all  presided 
one  special  magistrate,  called  the  chief  justiciar,  or  capitalis  justidarius 
tallus  Anglice,  who  was  also  the  principal  minister  of  state,  the  second  man 
in  the  kingdom,  and,  by  virtue  of  his  office,  guardian  of  the  realm  in  the 
king's  absence ;  and  this  officer  it  was  who  principally  determined  all  the 
vast  variety  of  causes  that  arose  in  this  extensive  jurisdiction  ;  and  from 
the  plenitude  of  his  power  grew  at  length  both  obnoxious  to  the  peoplo 
and  dangerous  to  the  government  which  employed  him. 

This  great  universal  court  being  bound  to  follow  the  king's  house- 
hold in  all  his  progresses  and  expeditions,  the  trial  of  common  causes 
therein  was  found  very  burthensome  to  the  subject ;  wherefore  King  John, 
who  dreaded  also  the  power  of  the  justiciar,  very  readily  consented  to 
that  article  which  now  forms  the  above  chapter  of  Magna  Charta. — 3 
B{.  Com.  38.  See  also- Lord  Campbell's  "Lives  of  the  Chief  Justices  of 
England,"  voL  i.  c.  i. 


126  BISE    AND    PROGRESS 

ment,  shall  not  be  taken  but  in  their  proper  counties,, 
and  after  this  manner :  We,  or,  if  we  should  be  out 
of  the  realm,  our  chief  justiciary,  shall  send  two 
justiciaries  through  every  county  four  times  a  year, 
who,  with  four  knights,  chosen  out  of  every  shire  by 
the  people,  shall  hold  the  said  assizes,  in  the  county, 
on  the  day,  and  at  the  place  appointed.  19.  And  if 
any  matters  cannot  be  determined  on  the  day  appoint- 
ed for  holding  the  assizes  in  each  county,  so  many  of 
the  knights  and  freeholders  as  have  been  at  the  assizes 
aforesaid,  shall  stay  to  decide  them,  as  is  necessary, 
according  as  there  is  more  or  less  business.*  20.  A 

*  The  legal  term,  "  assize,"  means  strictly  the  jury  of  twelve  knights, 
whom  Henry  II.  appointed  as  "  assessors"  to  the  judges  on  certain  trials 
of  questions  of  fact  respecting  real  property.  Thence  the  word  came  to 
mean  the  trial  itself;  and  the  term  "  assizes  "  has  long  been  popularly 
used  for  the  trials,  both  civil  and  criminal,  which  are  held  before  the 
judges  on  their  circuits.  The  three  actions  (or  assizes)  which  are  spoken 
of  in  the  text,  had  long  been  obsolete  before  they  were  formally  abolished 
about  20  years  ago.  The  two  first  related  to  the  trial  of  title  and  posses- 
sory rights  to  real  property ;  the  last  related  to  disputes  as  to  the  rights  to 
advowson.  Actions  of  this  nature  were  obliged  to  be  commenced  in  the 
king's  court  "  But  because  few,  comparatively  speaking,  could  have  re- 
course to  so  distant  a  tribunal  as  that  of  <the  king's  court,  and  perhaps 
also  on  account  of  the  attachment  which  the  English  felt  to  their  ancient 
tiial  by  the  neighbouring  freeholders,  Henry  II.  established  itinerant  jus- 
tices to  decide  civil  and  criminal  pleas  in  each  county.  Justices  in  Eyre 
(or,  as  we  now  call  them,  of  assize)  were  sometimes  commissioned  in  the 
reign  of  Henry  I.,  but  do  not  appear  to  have  gone  their  circuits  regularly 
before  22  Hen.  II.  (1176.)  We  have  owed  to  this  excellent  institution 
the  uniformity  of  our  common  law,  which  would  otherwise  have  been 
split,  like  that  in  France,  into  a  multitude  of  local  customs ;  and  we  still 
owe  to  it  the  assurance,  which  is  fdt  by  the  poorest  and  most  remote  inhabitant 
of  England,  that  his  right  is  weighed  by  the  saiM  incorrupt  and  acule  u.  der- 
ftandiiiff  upon  which  the  decision  of  the  highest  questions  is  reposed.  The  jus- 
tices of  assize  seem  originally  to  have  gone  their  circuits  annually  ;  and 
as  part  of  their  duty  was  to  set  tallages  upon  all  royal  towns,  and  super- 
intend the  collection  of  the  revenue,  we  may  be  certain  that  there  rould 
be  no  long  interval.  This  annual  visitation  was  expressly  confirmed  by 
the  twelfth  section  of  Magna  Charta,  which  provides  also,  that  no  assize 
of  novel  disseisin,  or  mort  d'ancestor,  should  be  taken  except  in  the  shire 
whore  the  lands  in  controversy  lay.  Hence  this  clause  stood  opposed  on 
the  one  hand  to  the  encroachments  of  the  king's  court,  which  might 
otherwise,  by  drawing  pleas  of  land  to  itself,  have  defeated  the  suitor'« 
light  to  a  jury  from  the  vicinage ;  and,  on  the  other,  to  those  of  the  feu- 


OF    THE    CONSTITUTION.  127 

freeman  shall  not  be  amerced  for  a  small  fault,  but 
after  the  manner  of  the  fault ;  and  for  a  great  crime 
according  to  the  heinousness  of  it,  saving  to  him  his 
contenement  ;  and  after  the  same  manner  a  mer- 
chant, saving  to  him  his  merchandise.  And  a  villein* 
shall  be  amerced  after  .the  same  manner,  saving  to 
him  his  wainage,  if  he  falls  under  our  mercy  ;  and 
none  of  the  aforesaid  amerciaments  shall  be  assessed 
but  by  the  oath  of  honest  men  in  the  neighbourhood. 
21.  Earls  and  barons  shall  not  be  amerced,  but  by 
their  peers,  and  -after  the  degree  of  the  offence.  22. 
No  ecclesiastical  person  shall  be  amerced  ^or  his  lay 
tenement,  but  according  to  the  proportion  of  the 
others  aforesaid,  and  not  according  to  the  value  of  his 
ecclesiastical  benefice.f  23.  Neither  a  town  nor  any 
tenant  shall  be  distrained  to  make  bridges  or  banks, 
unless  that  anciently  and  of  right  they  are  bound  to 
do  it.  24.  No  sheriff,  constable,  coroner,  or  other  our 
bailiffs,  shall  hold  pleas  of  the  Crown.^  25.  All 

dal  aristocracy,  who  hated  any  interference  of  the  Crown  to  chastise  their 
violation  of  law,  or  control  their  own  jurisdiction." — Middle  Ages,  vol.  ii. 
p.  334.  I  have  drawn  these  remarks  of  Hallam's  partly  from  his  text, 
mid  partly  from  a  note.  It  may  he  doubtful  how  far  the  passage,  which 
1  have  italicised,  is  still  applicable,  since  the  introduction  and  extension 
of  the  new  county  courts. 

*  See  an  explanation  of  villeinage,  p.  85,  supra. 

t  Blackstone  describes  the  meaning  of  these  clauses  to  be,  that  no 
man  should  have  a  larger  amercement  imposed  upon  him  than  his  cir- 
cumstances or  personal  estate  would  bear;  saving  to  the  landholder  his 
contenement  or  land,  to  the  trader  his  merchandise,  and  to  the  country- 
man his  wainage  or  team,  and  instruments  of  husbandry. 

J  The  object  of  this  enactment  was,  that  all  criminal  charges,  which 
exposed  the  party  accused  to  the  peril  of  heavy  punishment,  should  be 
tried  before  judges  of  learning  and  experience  in  the  laws  of  tbe  realm, 
and  not  before  inferior,  and  probably  incompetent  officers.  (See  Coke,  2 
Inst.  ?,0.) 

"Pleas  of  the  Crown"  mean  those  judicial  processes,  which  are  carried 
on  in  the  sovereign's  name  against  criminal  offenders,  because  (as  Black- 
etoue  observes)  "  in  him  centres  the  majesty  of  the  whole  community, 
and  he  is  supposed  by  the  law  to  be  the  person  injured  by  every  infrac- 
tion of  the  public  rights  belonging  to  that  community,  and  is  therefore  in 
ail  cases  the  proper  prosecutor  for  every  public  offence."  At  tbe  time  of 


128  KISE   AND   PROGRESS 

counties,  hundreds,  wapentakes,  and   tythings,  shall 
stand  at  the  old  rents,  without  any  increase,  except 


the  grant  of  the  Great  Charter,  the  crimes  of  theft  (see  Reeves,  Hist. 
Law,"  vol.  i.  p.  281),  forgery,  coining  false  money,  and  other  acts  coming 
within  the  definition  of  the  cnmen  faM,  were  held  to  be  pleas  of  the 
Crown,  as  well  as  treason,  murder,  manslaughter,  robbery,  and  other 
graver  atrocities  (see  Reeves,  vol.  i.  p.  200).  So  that  the  effect  of  this 
clause  of  the  Charter  was  to  put  an  end  entirely  to  the  most  important 
functions  of  the  criminal  branch  of  the  county  court,  and  of  the  other 
inferior  and  local  tribunals  of  the  country.  This  prohibition  was,  how- 
ever, held  only  to  apply  to  hearing  and  determining  pleas  of  the  Crown, 
and  sheriffs  continued  to  take  (but  not  to  try)  indictments  of  felonies  and 
misdemeanors,  and  coroners  continued  to  take  (but  not  to  try)  appeals, 
till  forbidden  by  a  statute  of  Edward  IV.  Coroners  still  take  inquisitions 
whereby  parties  are  charged  of  murder  or  manslaughter,  and  on  which 
they  are  tried  by  the  judges,  who  have  commissions  of  oyer  and  terminer 
and  gaol  delivery. 

(For  the  duties  and  powers  which  the  courts  of  the  tourn  and  the  leet 
still  retained  as  to  frankpledge  and  other  matters,  see  post,  the  note  on 
the  provision  respecting  it,  which  was  introduced  into  the  Great  Charter 
as  issued  by  Henry  III.) 

The  present  clause  of  the  Great  Charter  mentions  specifically  sheriffs, 
constables,  coroners,  and  bailiffs ;  but  it  has  been  held  to  prohibit  all  per- 
sons from  trying  and  determining  criminal  cases,  unless  they  have  a  spe- 
cial commission  from  the  Crown  for  that  purpose,  such  as  the  commissions 
of  oyer  and  terminer  and  of  gaol  delivery,  which  are  given  to  the  judges 
on  each  circuit,  or  such  as  are  included  in  the  commission  given  to  the 
justices  of  the  peace  in  their  respective  counties.  "  Some  explanation 
may  be  useful  of  the  four  degrees  of  the  royal  officers  who  are  specified 
in  the  text  of  the  Charter,  and  forbidden  thenceforth  to  try  pleas  of  the 
Crown  as  by  their  general  authority.  Sheriffs  were  the  chief  officers 
under  the  king  in  every  county,  deriving  their  title  from  the  two  Saxon 
words  '  shire '  and  '  reeve,'  the  bailiff  or  steward  of  the  division.  They 
are  called  in  the  Latin  text  of  the  Great  Charter,  vivecomes,  which  literally 
signifies  '  in  place  of  the  earl  of  the  county,'  who  anciently  governed  it 
under  the  king,  as  Lord  Coke  observes  in  his  Commentary  on  the  first 
statute  of  Westminster,  chap.  10,  enacted  in  1274,  the  third  of  Edward 
L  The  next  officer  mentioned  in  this  chapter  of  Magna  Charta  is  con- 
tfabulai-ius,  or  constable,  which  is  sometimes  derived  from  the  Saxon,  but 
other  authorities  have  conceived  it  more  truly  to  come  from  the  Latin 
coines  stabuli,  a  superintendent  of  the  imperial  stables,  or  master  of  the 
horse.  This  title,  however,  began  in  the  course  of  time  to  signify  a  com- 
mander, in  which  sense  it  was  introduced  into  England.  In  the  present 
instance,  the  word  is  put  for  the  constable,  or  keeper  of  a  castle,  frequently 
called  a  Castellan.  They  were  possessed  of  such  considerable  power 
within  their  own  precincts,  that  previously  to  the  present  Act  they  held 
trials  of  crimes,  properly  the  cognizance  of  the  Crown,  as  the  sheriffs  did 
within  their  respective  bailiwicks ;  and  sealed  with  their  own  effigies  ou 


OF   THE   CONSTITUTION.  129 

in  our  demesne  manors.*     26.  If  any  one  holding  of 
us  a  lay-fee  die,  and  the  sheriff,  or  our  bailiffs,  show 


horseback.  The  English  fortresses  to  which  these  officers  belonged,  it 
the  time  of  King  Henry  II.  amounted  in  number  to  1115;  and  it  was 
held  that  there  should  be  one  in  every  manor,  bearing  the  name  of  that 
amnor,  wherein  the  constable  had  equal  rale.  As  prisons  were  considered 
to  be  an  important  part  of  all  ancient  castles,  these  officers  are  sometimes 
called  constables  of  fees,  which  signifies  those  who  were  paid  for  keeping 
prisons.  In  this  part  of  their  duty,  they  appear  often  to  have  been  guilty 
of  great  cruelty;  since  in  the  fifth  year  of  Henry  IV.,  1403,  chap.  10,  it 
is  enacted,  the  justices  of  peace  shall  imprison  in  the  common  gaol,  '  be- 
cause,' says  the  passage,  '  that  divers  constables  of  castles  within  the 
realm  of  England  be  assigned  to  be  justices  of  peace  by  commission  from 
our  Lord  the  King,  and  by  colour  of  the  said  commissions  they  take  peo- 
ple to  whom  they  bear  ill-will,  and  imprison  them  within  the  said  castles, 
till  they  have  made  fine  and  ransom  with  the  said  constables  for  their 
deliverance.'  This  statute,  observe  Jacob  and  Tomlins,  seems  to  have 
put  an  end  to  them.  The  title  of  Coroner  implies  that  he  was  an  officer 
to  the  Crown,  to  whom,  in  certain  cases,  pleas  of  the  Crown  in  which  the 
king  is  more  immediately  concerned,  are  properly  belonging ;  and  in  this 
sense  the  Lord  Chief  Justice  of  the  King's  Bench  is  the  principal  coroner 
of  the  kingdom.  Previously  to  this  chapter  of  Magna  Charta,  a  coroner 
might  not  only  receive  accusations  against  offenders,  but  might  try  them  ; 
but  his  authority  was  afterwards  in  general  reduced  to  the  inquiry  into 
violent  and  untimely  death,  on  sight  of  the  body ;  although  by  custom 
in  some  places  he  might  make  inquisition  of  other  felonies.  By  the  first 
statute  of  Westminster,  chap.  10,  his  power  was  somewhat  more  positively 
explained,  since  it  was  there  ordained  that  the  coroner  should  attach 
pleas  of  the  Crown,  and  present  them  to  the  justices,  but  he  can  proceed 
no  further.  The  last  rank  of  great  officers  mentioned  in  this  chapter,  is 
that  of  bailiffs,  whose  name  is  derived  from  the  old  French  word  Bayliff, 
the  keeper  of  a  province  ;  but  in  the  present  instance,  in  this  term,  says 
Coke,  '  are  comprehended  all  judges  or  justices  of  any  court  of  justice  ; ' 
by  all  which  specifications  it  is  evident,  according  to  a  rule  cited  by  tha 
same  author,  that  '  the  pleas  of  our  Lord  the  King  shall  be  especially 
reserved,  that  by  none  now  in  the  kingdom  can  pleas  be  had  or  held, 
after  the  confirmation  of  the  aforesaid  charter  is  made,  without  a  special 
commission.' " — Thomson's  Magna  Charta,  p.  204. 

*  The  Anglo-Norman  kings  used  to  make  a  regular  profit  out  of  the 
appointment  of  sheriffs  to  counties,  and  of  the  officers  to  other  districts. 
Sometimes  they  were  farmed  out  to  the  highest  bidder.  The  effect  of 
this,  of  course,  was  to  produce  great  oppression  of  the  people,  as  the  offi- 
cials who  paid  thus  largely  for  their  places,  strove  to  indemnify  themselves 
by  exacting  immoderate  fees,  by  unjust  confiscations,  by  imposing  exces* 
•ive  fines,  and  every  other  species  of  extortion. 

This  clause  of  John's  Charter  is  not  repeated  in  the  Charter  a»  con 
firmed  by  Henry  III. 


130  EISE   AND  PEOGKES3 

our  letters  patent,  of  summons  for  debt  which  the 
dead  man  did  owe  to  us,  it  shall  be  lawful  for  the 
sheriff  or  our  bailiff  to  attach  and  inroll  the  chattels 
of  the  dead,  found  upon  his  lay-fee,  to  the  value  of 
the  debt,  by  the  view  of  lawful  men,  so  as  nothing  be 
removed  until  our  whole  clear  debt  be  paid  ;  and  the 
rest  shall  be  left  to  the  executors  to  fulfil  the  testa- 
ment of  the  dead,  and  if  there  be  nothing  due  from 
him  to  us,  all  the  chattels  shall  go  to  the  use  of  the 
dead,  saving  to  his  wife  and  children  their  reasonable 
shares.  27.  If  any  freeman  shall  die  intestate,  his 
chattels  shall  be  distributed  by  the  hands  of  his 
nearest  relations  and  friends,  by  view  of  the  church ; 
saving  to  every  one  his  debts  which  the  deceased 
owed  to  him.*  28.  No  constable  or  bailiff  of  ours  shall 
take  corn  or  other  chattels  of  any  man,  unless  he 
presently  give  him  money  for  it,  or  hath  respite  of 
payment  by  the  good- will  of  the  seller.f  29.  No 


*  For  an  account  of  the  ancient  law  as  to  a  man's  right  to  bequeath 
nis  personal  property  by  will,  the  functions  of  executors,  the  mode  in 
which  personal  property  was  distributed  when  a  man  died  intestate,  the 
claims  of  the  church,  the  duties  of  administrators,  and  the  right  of  credi- 
tors, see  Williams  on  Executors,  or  Stephens'  "  Blackstone,"  vol.  ii.  See 
also,  as  to  the  precise  meaning  of  these  clauses  of  the  Great  Charter,  1 
Reeve,  244,  and  Thomson's  "  Magna  Charta,"  p.  208. 

t  "  The  profitable  prerogative  of  purveyance  and  pre-emption  was  a 
right  enjoyed  by  the  Crown  of  buying  up  provisions  and  other  necessaries, 
by  the  intervention  of  the  king's  purveyors,  for  the  use  of  his  royal  house- 
hold, at  an  appraised  valuation,  in  preference  to  all  others,  and  even  with- 
out the  consent  of  the  owner ;  and  also  of  forcibly  impressing  the  car- 
riages and  horses  of  the  subject  to  do  the  king's  business  on  the  public 
roads  in  the  conveyance  of  timber,  baggage,  and  the  like,  however  incon- 
venient to  the  proprietor,  upon  paying  him  a  settled  price ;  a  prerogative 
which  prevailed  pretty  generally  throughout  Europe  during  the  scarcity 
of  gold  and  silver,  and  the  high  valuation  of  money  consequential  there- 
upon. In  those  early  times  the  king's  household  (as  well  as  those  of  in- 
ferior lords)  were  supported  by  specific  renders  of  corn  and  other  victuali 
from  the  tenants  of  the  respective  demesnes ;  and  there  was  also  a  con- 
tinual market  kept  at  the  palace  gate  to  furnish  viands  for  the  royal  use  ; 
And  this  answered  all  purposes  in  those  ages  of  simplicity,  so  long  as  the 
king's  court  continued  in  any  certain  place.  But  when  it  removed  from 
one  part  of  the  kingdom  to  another  (as  was  formerly  very  frequently  done), 


OF  THE   CONSTITUTION.  131 

constable  shall  distrain  any  knight  to  give  money  for 
castle  guard,  if  he  himself  will  do  it  in  his  person,  or 
by  another  able  man  in  case  he  cannot  do  it  through 
any  reasonable  cause.  And  if  we  lead  him,  or  send 
him  in  an  army,  he  shall  be  free  from  sucli  guard  for 
the  time  he  shall  be  in  the  army  by  our  command.* 
30.  No  sheriff  or  bailiff  of  ours,  or  any  other,  shall 
take  horses  or  carts  of  any  freeman  for  carriage,  but 
by  the  good- will  of  the  said  freeman.f  31.  Neither 
shall  we  nor  our  bailiffs  take  any  man's  timber  for  our 
castles  or  other  uses,  unless  by  the  consent  of  the 
owner  of  the  timber.f  32.  We  will  retain  the  lands 
of  those  convicted  of  felony  only  one  year  and  a  day, 
and  then  they  shall  be  delivered  to  the  lord  of  the 
fee.J  33.  All  wears  for  the  time  to  come  shall  be 


it  was  found  necessary  to  send  purveyors  beforehand  to  get  together  a 
sufficient  quantity  of  provisions  and  other  necessaries  for  the  household  ; 
and,  lest  the  unusual  demand  should  raise  them  to  an  exorbitant  price, 
the  powers  before-mentioned  were  vested  in  these  purveyors,  who,  in  pro- 
cess of  time,  very  greatly  abused  their  authority,  and  became  a  great  op- 
pression to  the  subject,  though  of  little  advantage  to  file  Crown ;  ready 
money  in  open  market  (when  the  royal  residence  was  more  permanent 
and  specie  began  to  be  plenty)  being  found  upon  experience  to  be  the 
best  proveditor  of  any ;  wherefore  by  degrees  the  power  of  purveyance 
having  fallen  into  disuse  during  the  suspension  of  monarchy,'  King  Charles 
at  his  restoration  consented  to  resign  entirely  these  branches  of  his  reve- 
nue and  powers." — 1  Bl.  Com,.,  287  ;  Greenings  Magna  Charta,  p.  17. 

*  According  to  Lord  Coke,  the  common  law  was,  that  he  who  held 
by  castle-guard,  that  is,  by  the  service  of  keeping  a  tower,  or  a  gate,  or 
the  like,  of  a  castle  in  time  of  war,  might  do  it  either  by  himself,  or  by 
any  sufficient  deputy ;  and  that  if  such  tenant  were  by  the  king  led  or 
sent  to  his  hosts  in  time  of  war,  he  was  excused  and  quit  of  his  service 
for  keeping  of  the  castle  either  by  himself  or  by  another  during  the  time 
he  so  served  the  king. — 2  Coke's  Inst.,  34  ;  Greening's  Magna  Charta,  p.  18. 

t  See  note  to  c.  28. 

j  The  word  convict  here  means  attainted  (2  Coke's  Inst.,  37),  although 
it  generally  has  a  very  different  signification.  The  difference  between 
a  man  attainted  and  convicted  is,  that  a  man  is  said  to  be  convicted  be- 
fore he  hath  judgment,  as  if  a  man  be  cinvicted  by  verdict  or  confession; 
and  when  ho  hath  his  judgment  upon  the  verdict  or  confession,  then  he 
is  said  to  be  attainted  (1  Inst.  390  6),  that  is  to  say,  his  blood  is  become 
(attinctus)  tainted,  stainted,  or  corrupted  ;  insomuch  that,  by  the  common 
Jaw,  in  cases  of  treason  or  capital  felony,  his  children  or  other  kindred 


132  RISE   AND   PBOGBESS 

put  down  in  the  rivers  of  Thames  and  Medway,  aud 
throughout  all  England,  except  upon  the  sea-coast.* 

could  not  inherit  his  estate,  nor  his  wife  claim  her  dower ;  the  same  could 
not  be  restored  or  saved  but  by  Act  of  Parliament,  and  therefore,  in 
divers  instances  before  the  54  Geo.  3,  there  was  a  special  provision  by 
Act  of  Parlipment  that  such  or  such  an  attainder  should  not  work  cor- 
ruption ot  oiood,  loss  of  dower,  or  disherison  of  heirs. — 1  Inst.  391  J. 
And  by  the  common  law,  all  lands  of  inheritance  whereof  the  offender 
was  seised  in  his  own  right,  and  also  all  rights  of  entry  to  lands  in  the 
hands  of  a  wrong-doer,  were  forfeited  to  the  king  by  an  attainder  of  high 
treason :  and  to  the  lord  of  whom  they  were  immediately  holden  by  an 
attainder  of  petit  treason  or  felony. — 2  Haw.  P.  C.  c.  49,  s.  1.  But  the 
lord  could  not  enter  into  the  lands  holden  of  him  upon  an  escheat  for 
petit  treason  or  felony  without  a  special  grant,  till  it  appeared  by  due 
process  that  the  king  had  had  his  prerogative  of  the  year,  day,  and  waste. 
—2  Haw.  P.  C.  c.  49,  a.  3. 

But  by  the  statute  54  Geo.  3,  c.  145,  intituled,  "  Au  Act  to  take  away 
corruption  of  blood,  save  in  certain  cases,"  it  is  enacted,  "  That  no  at- 
tainder for  felony  which  shall  take  place  from  and  after  the  passing  of 
that  Act,  save  and  except  in  cases  of  the  crime  of  high  treason,  or  of  the 
crimes  of  petit  treason  or  murder,  or  of  abetting,  procuring,  or  counselling 
the  same,  shall  extend  to  the  disinheriting  of  any  heir,  nor  to  the  preju- 
dice of  the  right  or  title  of  any  person  or  persons  other  than  the  right  or 
title  of  the  offender  or  offenders,  during  his,  her,  or  their  natural  lives 
only  ;  and  that  it  shall  be  lawful  to  every  person  or  persons  to  whom  the 
right  or  interest  of  any  lands,  tenements,  or  hereditaments,  after  the  death 
of  any  such,  offender  or  offenders,  should  or  might  have  appertained,  if  no 
such  attainder  had  been,  to  enter  into  the  same."  And  by  the  3  &  4  Will. 
4,  c.  106,  s.  10,  it  is  further  enacted  that  "  when  the  persons  from  whom 
the  descent  of  any  land  is  to  be  traced  shall  have  had  any  relation  who, 
having  been  attainted,  shall  have  died  before  such  descent  shall  have  taken 
place,  then  such  attainder  shall  not  prevent  any  perso  .  from  inheriting 
such  land  who  would  have  been  capable  of  inheriting  the  same,  by  tra- 
cing his  descent  through  such  relation,  if  he  had  not  been  attainted,  unless 
such  land  shall  have  escheated,  in  consequence  of  such  attainder,  before 
the  1st  day  of  January,  1834." — Green-ng,  p.  18.  The  personal  property 
of  a  convicted  felon  is  still  forfeited  to  the  Crown. 

*  The  intent  of  this  was  to  prevent  any  person  from  appropriating  to 
himself  a  fishery  of  any  part  of  a  public  river.  Every  public  river  or 
stream,  says  Lord  Coke,  is  the  king's  highway,  which  cannot  be  privately 
occupied.  It  was  accordingly  held  to  be  illegal  to  erect  any  obstruction, 
such  as  a  weir,  across  a  public  river.  The  peculiar  kind  of  weirs  men- 
tioned in  the  text,  and  called  Kidelli,  were  dams  having  a  loop  or  narrow 
cut  in  them,  and  furnished  with  wheels  and  engines  for  catching  fish. — 
Thomsons  Notes  on  the  Great  Charter,  p.  214.  For  further  information  as 
&>  the  king's  right  to  the  soil,  &c.,  of  the  sea-shore,  and  of  navigable 
rivers,  and  so  to  the  rights  of  highway  and  fishery  which  the  public  havt 
in  them,  see  Jerwood  on  Rights  to  the  Sea- shore,  &c. 


OF   THE   CONSTITUTION.  133 

34.  The  writ  which  is  called  pro&cipe,  for  the  future, 
shall  not  be  made  out  to  any  one,  of  any  tenement, 
whereby  a  freeman  may  lose  his  court.*  35.  There 
shall  be  one  measure  of  wine  and  one  of  ale  through 
our  whole  realm  ;  and  one  measure  of  corn,  that  is  to 
say,  the  London  quarter  ;  and  one  breadth  of  dyed 
cloth,  and  russets,  and  haberjeets,  that  is  to  say,  two 
ells  within  the  lists  ;  and  it  shall  be  of  weights  as  it 
is  of  measures.  36.  Nothing  from  henceforth  shall 
be  given  or  taken  for  a  writ  of  inquisition  of  life  or 
limb,  but  it  shall  be  granted  freely,  and  not  denied,  f 
37.  If  any  do  hold  of  us  by  fee-farm,  or  by  socage,  or 
by  burgage,  and  he  hold  also  lands  of  any  other  by 
knight's  service,  we  will  not  have  .the  custody  of  the 
heir  or  land,  which  is  holden  of  another  man's  fee  by 

*  This  clause  was  designed  to  protect,  to  some  extent,  the  local  juris- 
diction of  the  courts  baron.  When  the  tenant  of  lands,  who  was  not  a 
tenant  in  captte  of  the  Crown,  was  dispossessed,  he  was  required  first  to  sue 
for  their  recovery  in  the  court  baron  of  the  inferior  lord,  of  whom  he  hold 
them.  It  was  only  when  the  inferior  lord  resigned  his  privilege  of  juris- 
diction, that  the  tenant  was  entitled  to  sue  out  in  the  king's  court  the 
writ  of  right  for  the  recovery  of  the  lands,  which  was  called  a  prcecipe  in 
capite. 

t  The  object  of  this  clause  was,  to  prevent  the  long  imprisonment  of 
a  person  charged  with  a  crime  without  inquiring  into  his  guilt  or  inno- 
cence. For  the  proper  purpose  of  imprisoning  such  is,  as  Lord  Coke 
says,  only  for  securing  that  they  may  be  duly  tried.  The  writ  of  inqui- 
sition mentioned  in  the  text  was  called  a  writ  de  odio  et  olid,  and  was  one 
of  the  great  securities  of  personal  liberty  in  those  days.  It  was  a  rule 
that  a  person  committed  to  custody  on  a  charge  of  homicide  should  not 
be  bailed  by  any  other  authority  than  that  of  the  king's  writ ;  but  to 
relieve  such  a  person  from  the  hardship  of  lying  in  prison  till  the  coming 
of  the  justices  in  eyre,  this  writ  used  to  be  directed  to  the  sheriff,  com- 
manding him  to  make  inquisition,  by  the  oaths  of  lawful  men,  whether 
the  party  in  prison  was  charged  through  malice,  utrum  rettatus  sit  odio  et 
atid ;  and  if  it  was  found  that  he  was  accused  odio  et  atid,  and  that  he 
was  not  guilty,  or  that  he  did  the  fact  se  defendendo  or  per  imfortunium, 
yet  the  sheriff  had  no  authority  by  this  writ  to  bail  him,  but  the  party 
was  then  to  sue  a  writ  of  tradas  in  ballium,  directed  to  the  sheriff,  and 
commanding  him  that  if  the  prisoner  found  twelve  good  and  lawful  men 
of  the  county  who  would  be  mainprize  for  him,  then  he  should  deliver 
him  in  bail  to  those  twelve. — See  Heeve's  Hist,  Com.  Law,  258  ;  Thomsorii 
Ifayna  Charta. 


134  RISE   AND   PROGRESS 

• 

reason  of  that  fee-farm,  socage,  or  burgage  ;  neither 
will  we  have  the  custody  of  such  fee-farm,  socage,  or 
burgage,  except  knight's  service  was  due  to  us  out  of 
the  same  fee-farm.  We  will  not  have  the  custody  of 
an  heir,  nor  of  any  land  which  he  holds  of  another  by. 
knight's  service,  by  reason  of  any  petty  serjeanty  that 
holds  of  us,  by  the  service  of  paying  a  knife,  an 
arrow,  or  the  like.*  38.  No  bailiff  from  henceforth 
shall  put  any  man  to  his  law  upon  his  own  bare 
saying,  without  credible  witnesses  to  prove  it.f 

39.  NULLUS  LIBER  HOMO  CAPLA.TUR,  VEL  IMPRIS- 
ONETUR,  ATJT  UTLAGETUR,  AUT  EXULETUR,  AUT  ALI- 
QUO  MODO  DESTRUATUR  ;  NEC  SUPER  BUM  IBIMUS,  NEC 
SUPER  EUM  MITTEMUS,  NISI  PER  LEGALE  JUDICIUM 
PARIDM  SUORUM,  YEL  PER  LEGEM  TERR.E.  40.  NULL! 
VENDEMUS,  NULLt  NEGABIMUS,  AUT  DIFFEREMUS  REC- 
TUM AUT  JUSTITIAM. 

39.  NO  FREEMAN  SHALL  BE  TAKEN  OR  IMPRIS- 
ONED, OR  DISSEISED,  OR  OUTLAWED,  OR  BANISHED,  OR 
ANY  WAYS  DESTROYED,  NOR  WILL  WE  PASS  UPON  HIM, 
NOR  WILL  WE  SEND  UPON  HIM,  UNLESS  BY  THE  LAW- 
FUL JUDGMENT  OF  HIS  PEERS,  OR  BY  THE  LAW  OF  THE 
LAND.  40.  WE  WILL  SELL  TO  NO  MAN,  WE  WILL  NOT 
DENY  TO  ANY  MAN,  EITHER  JUSTICE  OR  RIGHT.J 

*  For  explanation  of  socage  tenure,  knight's  service,  fee-farm,  and 
burgage  tenure,  see  Chapter  IX.,  supra.  "  Petit  serjeanty,"  as  defined  hy 
Littleton,  "  consists  in  holding  lands  of  the  king  hy  the  service  of  render- 
ing to  him  annually  some  sma 1  implement  of  war,  as  a  bow,  a  sword,  a 
lance,  or  an  arrow,  or  the  like." — 2  Bl.  Com. 

f  See  1  Reeves  p.  248,  as  to  the  meaning  of  this  disputed  clause.  It 
is  generally  understood  as  referring  to  the  modes  of  trial  in  which  a  party 
charged  was  allowed  to  prove  that  a  criminal  charge  or  a  civil  claim  made 
against  him  was  unfounded,  by  pledging  his  own  oath,  and  bringing  others 
to  swear  with  him  to  that  effect.  This  mode  of  defence  was  called  in 
criminal  cases  a  trial  by  compurgators  (and  will  be  hereafter  referred  to 
when  the  origin  of  trial  by  jury  is  discussed);  in  civil  cases  it  was  called 
Wager  of  law,  and  has  only  been  entirely  abolished  in  the  last  rei^n  (see 
3  &  4  Will  4,  c.  42,  a.  13.') 

J  These  clauses  are  the  crowning  glories  of  the  Great  Charter.  Mr. 
lallani  (Midd.  Ag.  ii.  324)  calls  them  its  "  essential  clauses,"  being  those 


OF    THE    CONSTITUTION.  135 

41.  All  merchants  shall  have  safe  and  secure  con- 
duct, to  go  out  of,  and  to  come  into  England,  and  to 

which  "  protect  the  personal  liberty  and  property  of  all  freemen,  by  giving 
security  from  arbitrary  imprisonment  and  arbitrary  spoliation."  The  same 
high  authority  observes  that  these  words  of  the  Great  Charter,  "  interpret- 
ed by  any  honest  court  of  law,  convey  an  ample  security  for  the  two 
tnain  rights  of  civil  society.  From  the  era,  therefore,  of  King  John's 
Charter,  it  must  have  been  a  clear  principle  of  our  constitution  that  no 
man  can  be  detained  in  prison  without  trial.  Whether  courts  of  justice 
framed  the  writ  of  habeas  corpus  in  conformity  to  the  spirit  of  this  clause, 
or  found  it  already  in  their  register,  it  became  from  that  era  the  right  of 
every  subject  to  demand  it  That  writ,  rendered  more  actively  remedial 
by  the  statute  of  Charles  II.,  but  founded  upon  the  broad  basis  of  Magna 
Charta,  is  the  principal  bulwark  of  English  liberty ;  and  if  ever  temporary 
circumstances,  or  the  doubtful  plea  of  political  necessity,  sh^ll  lead  men 
to  look  on  its  denial  with  apathy,  the  most  distinguishing  characteristic 
of  our  constitution  will  be  effaced." 

Before  commenting  further  on  these  clauses  of  the  Great  Charter  of 
John,  it  may  be  convenient  to  observe  that  they  are  formed  into  one 
chapter  in  the  Charter  as  issued  by  Henry  IIL,  and  confirmed  by  subse- 
quent kings,  and  that  some  words  are  added  to  one  of  the  provisions,  for 
the  purpose  apparently  of  making  the  meaning  more  explicit.  The  chap- 
ter of  Henry  III.'s  Charter  is  as  follows : — "  Nullus  liber  homo  capiatur, 
vel  imprisonetur,  aut  disseisietnr  de  aliquo  libero  tenemento  suo  vel  libertati- 
bus  vel  liberis  cansuetudinibus  suis,  aut  utlagetur,  aut  exulet,  aut  aliquo  alio 
modo  destruatur,  nee  super  eum  ibimus,  nee  super  eum  mittemus  nisi  per 
legale  judicium  parium  suorum  vel  per  legem  terrae.  Nulli  vendemus, 
nulli  negabimus,  aut  defferemus  rectum  aut  justitiam."  This  chapter 
is  translated  in  our  common  edition  of  the  Statutes  aa  follows : — "  No 
freeman  shall  be  taken  or  imprisoned,  or  be  disseised  of  his  freehold, 
or  liberties,  or  free  customs,  or  be  outlawed  or  exiled,  or  any  otherwise 
destroyed,  nor  will  we  pass  upon  him,  nor  condemn  him,  but  by  lawful 
judgment  of  his  peers,  or  by  the  law  of  the  laud.  We  will  sell  to  no  man, 
we  will  not  deny  or  defer  to  any  man,  either  justice  or  right." 

These  are  all  words  which  should  be  carefully  read  over  and  over 
and  again,  for,  as  Lord  Coke  quaintly  observes,  in  his  comments  on  them, 
"As  the  gold-liner  will  not  out  of  the  dust,  shreds,  or  shreds  of  gold,  let 
passe  the  least  cram,  in  respect  of  the  excellency  of  the  metal ;  so  ought 
not  the  learned  reader  to  passe  any  syllable  of  this  law,  in  respect  of  the 
excellency  of  the  matter." 

The  first  words  of  this  chapter  of  the  Charter  (for  it  is  convenient  to 
follow  the  arrangement  and  the  wording  of  Henry  III.'s  version)  express 
the  extent  of  its  applicability.  It  is  not  a  piece  of  class  legislation,  but 
its  benefits  apply  to  all  the  freemen  of  the  land ;  and  all  freemen  ars 
equal  in  the  eye  of  this  great  law.  4i  Nullus  liber  homo  capiatur  " — no  free- 
man shall  be  taken,  &c.  Lord  Chatham's  eulogium  on  the  public  spirit 
she  wn  in  this  respect  by  the  barons  who  signed  the  Great  Charter  is  no 
less  just  than  eloquent.  "  My  lords,"  said  that  great  statesman  to  the 
House  of  Peers,  in  his  speech  on  the  9tb.  of  January,  1770,  "  it  is  to  ijow 


136  RISE   AND   PROGRESS 

stay  there,  and  to  pass  as  well  by  land  as  by  water, 
for  buying  and  selling  by  the  ancient  and  allowed  cus- 

ancestors,  my  lords, — it  is  to  the  English  barons,  that  we  are  indebted  foi 
the  laws  and  constitution  we  possess.  Their  virtues  were  rude  and  un- 
cultivated, but  they  were  great  and  sincere.  Their  understandings  were 
as  little  polished  as  their  manners,  but  they  had  hearts  to  distinguish  right 
from  wrong ;  they  had  heads  to  distinguish  truth  from  falsehood ;  they 
understood  the  rights  of  humanity,  and  they  had  spirit  to  maintain  them, 

"  My  lords,  I  think  that  history  has  not  done  justice  to  their  conduct, 
when  they  obtained  from  their  sovereign  that  great  acknowledgment  of 
national  rights  contained  in  Magna  Carta ;  they  did  not  confine  it  to 
themselves  alone,  but  delivered  it  as  a  common  blessing  to  the  whole 
people.  They  did  not  say,  These  are  the  rights  of  the  great  barons,  or 
these  are  the  rights  of  the  great  prelates.  No,  my  lords ;  they  said,  in  the 
simple  Latin  of  the  times,  nuttus  liber  homo,  and  provided  as  carefully  for 
the  meanest  subject  as  for  the  greatest.  These  are  uncouth  words,  and 
sound  but  poorly  in  the  ears  of  scholars ;  neither  are  they  addressed  to  the 
criticism  of  scholars,  but  the  hearts  of  free  men.  These  three  words,  nul- 
l/is liber  homo,  have  a  meaning  wliich  interests  us  all ;  they  deserve  to  be 
remembered — they  deserve  to  be  inculcated  in  our  minds — they  are  worth 
all  the  classics."  The  force  of  this  noble  panegyric  will  be  doubly  felt  if 
we  call  to  mind  the  insidious  attempt  made  by  John,  about  a  month  be- 
fore the  congress  at  Runnymede,  to  detach  the  barons  from  the  general 
national  interest,  by  offering  to  them  and  their  immediate  retainers,  as 
privileges,  those  rights  which  the  barons  claimed  and  secured  for  every 
freeman  of  the  land  (see  p.  114,  supra).  It  is  true  that  at  the  time  of 
the  grant  of  the  Charter  a  large  part  of  the  population  was  not  free  ;  but 
it  is  to  be  remembered  that  the  villeins  were  always  capable  of  being 
raised,  arid  were  constantly  rising  into  freemen,  so  that  the  ultimate 
effect  of  this  chapter  was  to  give  and  to  guarantee  full  protection  for 
property  and  person  to  every  human  being  who  breathes  English  air. 

In  Lord  Coke's  detailed  commentary  on  this  chapter  of  Magna  Carta, 
he  points  out  that  the  evils  from  wliich  the  laws  of  the  land  are  to  protect 
each  person  are  recited  in  the  order  in  which  they  most  affect  him ;  as, 
first,  loss  of  liberty — "No  freeman  shall  be  taken  or  imprisoned"  because  the 
freedom  of  a  man's  person  is  more  precious  to  him  than  all  the  succeed- 
ing particulars ;  and  the  word  "  taken,"  which  occurs  in  this  clause,  signi- 
fies also  being  restrained  of  liberty  by  petition  or  suggestion  to  the  king 
or  his  council.  Secondly,  the  chapter  declares  that  none  "  shall  be  dis- 
teised  of  his  free  tenement,  his  liberties,  or  his  free  customs ;"  meaning  that 
neither  the  king  nor  others  shall  seize  upon  any  of  his  possessions,  and 
that  a  man  shall  not  be  put  from  his  livelihood  without  answer.  The 
word  "  liberties  "  has  several  significations,  as  the  laws  of  the  realm,  priv- 
ileges bestowed  by  tho  king,  and  the  natural  freedom  possessed  by  the 
subjects  of  England  ;  for  which  cause  monopolies  in  general  are  against 
the  enactments  of  the  Great  Charter. 

The  present  chapter  ordains,  thirdly,  that  none  shall  be  outlairvd,  exiled, 
or  in  any  way  destroyed.  By  outlawry,  is  signified  the  ejection  of  a  person, 
by  three  pubh'c  proclamations,  from  the  benefit  of  the  law,  which,  from 


OF   THE    CONSTITUTION.  137 

toins,  without  any  evil  tolls  ;  except  in  time  of  war, 
or  when  they  are  of  any  nation  at  war  with  us.  And 

the  time  of  Alfred  until  long  after  the  reign  of  William  I.,  could  he  done 
for  felony  only,  for  which  the  penalty  was  death ;  and  therefore  an  out- 
law, being  considered  as  a  wolf,  might  be  slain  by  any  man.  In  the  be- 
ginning of  the  days  of  King  Edward  III.,  however,  it  was  enacted  that 
none  but  the  sheriff  should  put  an  outlaw  to  death ;  or  else  that  they 
should  be  considered  guilty  of  felony,  unless  he  was  slain  in  an  attempt 
to  take  him.  The  expression,  being  exiled,  signifies  to  be  banished,  or 
forced  to  abjure  the  realm  against  an  individual's  consent,  lor  this 
canse,  Sir  Edward  Coke  observes  that  the  king  cannot  send  any  subject 
of  England  into  foreign  parts  on  pretence  of  service,  as  an  ambassador, 
deputy  of  Ireland,  &c.,  unless  he  be  willing  to  go. 

The  chapter  next  declares  that  none  shall  be  "in  any  manner  destroyed 
contrary  to  the  law  of  the  land,"  which  Sir  Edward  Coke  interprets  to  signify 
being  "  fore-judged  of  life  or  limb,  disinherited,  or  put  to  torture  or  death." 
He  also  observes,  that  the  words  "in any  manner"  are  added  to  the  ex- 
pression "destroyed,"  and  to  no  other  in  the  sentence,  because  they  pro- 
hibit any  means  being  used  by  which  this  destruction  may  be  brought 
about ;  thus,  if  an  individual  be  accused  or  indicted  of  felony,  his  goods 
or  lands  can  neither  be  seized  into  the  king's  hands,  nor  granted,  nor  even 
promised  to  another,  before  his  attainter.  For,  until  he  be  attainted,  ho 
ought  to  derive  his  substance  from  his  own  possessions ;  and  when  they 
have  been  previously  granted,  it  often  followed  that  more  undue  means 
and  violent  prosecutions  were  used  for  private  interest,  than  the  ordinary 
course  of  the  law  would  justify.  (See  Coke's  Second  Institute,  and  Thom- 
son's Maffna  Charta.~) 

The  next  words  in  the  original  Latin  of  the  Charter  are,  "  Nee  super 
eum  ibimus  nee  super  eum  mittemus."  These  are  translated  in  the  ordinary 
edition  of  the  Statutes  :  "  Nor  will  tee  pass  upon  him,  nor  condemn  him,"  a 
version  neither  accurate  nor  sufficiently  expressive.  Lord  Coke  says, 
that  the  words  signify  that  none  shall  be  condemned  [that  is,  except 
after  lawful  trial,  as  next  mentioned]  at  the  king's  suit,  either  before  the 
king  in  his  bench,  where  the  pleas  are  supposed  to  be  held  in  his  presence, 
or  before  any  judge  or  commissioner  whatever.  Dr.  Lingard  has  pointed 
out  that  these  words  specially  refer  to  the  outrages  which  John  had  been 
accustomed  to  commit.  He  had  hitherto  been  in  the  habit  of  going  with 
an  armed  force  or  sending  an  armed  force  on  the  lands  and  against  the 
castles  of  all  whom  he  knew  or  suspected  to  be  his  secret  enemies,  with- 
out observing  any  form  of  law. 

Then  follow  the  words  of  the  Great  Charter,  which  specify  the  lawful 
4rial  which  each  freemen  is  to  be  entitled  to  before  he  can  suffer  aught 
at  the  hands  of  the  executioner.  He  is  to  suffer  none  of  the  abovemen- 
tioned  things,  "nisi  per  legale  judicium parwm  suorum  vel  per  legem  terrce" 
unkss  by  the  lawful  judgment  of  his  peers  or  by  the  law  of  the  la -id.  The  full 
meaning  of  these  important  words  wDl  be  found  discussed  in  the  text 
(infra,  p.  217,  et  seq.~)  when  we  investigate  how  far  Magna  Carta  recog- 
nises trial  by  jury  as  a  principle  of  our  constitution.  For  the  present,  it 


138  RISE   AND   PROGRESS 

if  there  be  found  any  such  in  our  land,  in  the  begin- 
ning of  the  war,  they  shall  be  attached,  without  dam- 
age to  their  bodies  or  goods,  until  it  be  known  unto 
us  or  our  chief  justiciary,  how  our  merchants  be 
treated  in  the  nation  at  war  with  us  ;  and  if  ours  be 
safe  there,  the  others  shall  be  safe  in  our  dominions.* 
42.  It  shall  be  lawful,  for  the  time  to  come,  for  any 
one  to  go  out  of  our  kingdom,  and  return  safely  and 
securely,  by  land  or  by  water,  saving  his  allegiance  to 
us  ;  unless  in  time  of  war,  by  some  short  space,  for 
the  common  benefit  of  the  realm,  except  prisoners 
and  outlaws,  according  to  the  law  of  the  land,  and 
people  in  war  with  us,  and  merchants  who  shall  be  in 
such  condition  as  is  above  mentioned.f  43.  If  any 
man  hold  of  any  escheat,  as  of  the  honour  of  Wai- 


may  be  observed,  that  this  part  of  the  Great  Charter  establishes  the  gen- 
eral right  of  the  subject  to  have  his  guilt  or  innocence  of  any  criminal 
charge  that  may  be  preferred  against  him,  determined  by  the  free  voice 
of  his  equals,  and  not  by  the  sovereign  or  any  nominee  of  the  sovereign. 
And  the  same  general  principle  is  established  as  to  all  civil  suits  by  which 
he  may  be  affected,  so  far  as  their  determination  may  depend  upon  the 
decision  of  the  issues  of  fact. 

The  conclusion  of  this  chapter  of  Henry's  Charter  (being  the  40th 
clause  of  that  of  John),  ordains,  "  We  will  sell  to  no  man,  we  will  not  deny  of 
delay  to  any  man,  justice  or  righf.."  One  immediate  object  of  this  was  to  put 
an  end  to  the  fines  which  John  and  his  predecessors  had  been  accustomed 
to  extort  from  suitors  in  their  courts  (see  p.  101,  supra).  But  it  contains 
a  general  principle  also.  Lord  Coke  observes,  that  these  words  are  spo- 
ken in  the  person  of  the  king,  who  is  supposed  to  be  present  in  all  his 
courts  of  law,  wherefore  all  his  subjects,  of  every  profession  and  degree, 
and  for  all  kinds  of  injuries,  are  entitled  to  have  immediate  and  perfect 
justice. 

*  Montesquieu  has  justly  eulogized  our  English  ancestors  for  having 
thus  "  made  the  protection  of  foreign  merchants  an  article  of  their  na- 
tional liberty."  This  generous  and  foresighted  enactment  in  favour  of 
commerce  ought  alone  to  have  prevented  any  English  writer  from  speak- 
ing (as  some  have  done)  of  the  struggle  for  Magna  Carta  as  a  selfish 
squabble  of  the  barons  against  the  king. 

f  This  clause  is  only  to  be  found  in  the  Charter  of  John.  The  sover- 
eign has  the  prerogative  of  restraining,  by  the  writ  "  Ne  exeat  regno," 
Buy  subject  from  quitting  the  kingdom.  The  reason  given  for  this  powoi 
is,  that  every  man  o\xght,  if  required,  to  defend  the  king  and  the  realm, 
It  was  not,  however,  limited  to  time  of  war.  In  practice  it  is  now  onlj 


OF    THE    CONSTITUTION.  139 

Jingford,  Nottingham,  Boulogne,  Lancaster,  or  of 
other  escheats  which  be  in  our  hands,  and  are  "baron- 
ies, and  die,  his  heir  shall  give  no  other  relief,  and 
perform  no  other  service  to  us,  than  he  would  to  the 
baron,  if  it  were  in  the  baron's  hand  ;  we  will  hold  it 
after  the  same  manner  as  the  baron  held  it.*  44. 
Those  men  who  dwelt  without  the  forest,  from  hence- 
forth shall  not  come  before  our  justiciaries  of  the 
forest,  upon  common  summons,  but  such  as  are  im- 
pleaded,  or  are  pledges  for  any  that  are  attached  for 
something  concerning  the  forest.f  45.  We  will  not 
make  any  justices,  constables,  sheriff's,  or  bailiffs,  but 
of  such  as  knoiv  the  law  of  the  realm  and  mean  duly 
t?  observe  it.\  46.  All  barons  who  have  founded  ab- 
used as  part  of  the  process  of  the  Court  of  Chancery  to  prevent  a  party 
to  a  suit  in  equity  from  improperly  withdrawing  his  person  and  property 
froru  the  jurisdiction  of  the  court  before  the  end  of  the  suit. — See  Boicyer's 
Commentary  on  the  Constitution  of  England. 

*  The  general  purpose  of  this  clause  was  that  the  tenant  of  an  infe- 
rior lord  (or  baron)  should  not  have  his  feudal  burdens  increased  if  the 
lord's  estate  (or  barony)  lapsed  to  the  Crown,  and  the  tenant  thereby  be- 
came the  king's  tenant.  For  an  explanation  of  the  special  terms,  see  1 
Reeves,  p.  238. 

t  This  and  the  47th,  48th,  and  part  of  the  53rd  clauses  in  John's 
Charter,  are  all  that  relate  to  the  mitigation  of  the  oppressions  caused 
by  the  forest  laws,  and  the  abuses  perpetrated  under  colour  of  them. 
These  evils  were  afterwards  more  specifically  redressed  by  the  Carta  de 
Foresta  of  Henry  III.  See  Ekckstone's  Introduction  to  the  Charters,  pp 
xxii.  xli, 

J  This  clause  only  appears  in  John's  Charter.  It  is  said  to  have 
been  specially  required  at  the  time,  in  consequence  of  the  misconduct  and 
incompetency  of  some  of  the  judicial  officers  whom  John  had  lately  aj  - 
pointed. 

The  principle  on  which  it  is  founded  ought  to  be  permanently  remem- 
bered both  by  those  who  confer  and  those  who  accept  judicial  appoint- 
ments ;  especially  the  important  station  of  justice  of  the  peace,  an  office 
that  was  indeed  created  after  the  time  of  John,  but  which  comes  fully 
within  the  spirit  of  this  clause  of  the  Great  Charter.  Wilful  or  corrjj>t 
perversion  of  the  law  by  county  or  borough  magistrates  is  almost  unknown 
in  modern  times ;  but  the  gross  ignorance  of  the  laws  of  the  realm  in 
which  many  of  them  venture  to  administer  those  laws,  is  equallj  discredi- 
table to  themselves  and  mischievous  to  the  community.  Lord  Coke  truly 
B»id  that  "  ignoranfia  judicis  Jit  scepennmero  calamitas  innocentis."  And 
tho&e  who  mount  the  judgment-seat  without  qualifying  themselves  by 


140  RISE   AND   PBOGEESS 

beys,  and  have  the  kings  of  England's  charters  of 
advowson,  or  the  ancient  tenure  thereof,  shall  have 
the  keeping  of  them,  when  vacant,  as  they  ought  to 
have.  47.  All  forests  that  have  "been  made  forests  in 
our  time,  shall  forthwith  be  disforested  ;  and  the  same 
shall  be  done  with  the  banks  that  have  been  fenced  in 
by  us  in  our  tune.  48.  All  evil  customs  concerning 
forests,  warrens,  foresters  and  warreners,  sheriffs  and 
their  officers,  rivers  and  their  keepers,  shall  forthwith 
be  inquired  into  in  each  county,  by  twelve  sworn 
knights  of  the  same  shire,  chosen  by  creditable  per- 
sons of  the  same  county  ;  and  within  forty  days  after 
the  said  inquest,  be  utterly  abolished,  so  as  never  to 
be  restored  :  so  as  we  are  first  acquainted  therewith, 
or  our  justiciary,  if  we  should  not  be  in  England. 
49.*  We  will  immediately  give  up  all  hostages  and 

knowledge  as  well  as  by  property,  may  well  be  reminded  of  an  anecdote  of 
the  great  Alfred.  That  king  used  earnestly  to  watch  and  examine  the  mode 
in  which  those  who  administered  justice  under  him  discharged  their  duty. 
When  any  of  their  decisions  which  were  erroneous  were  observed  by  him 
or  reported  to  him,  he  used  to  summon  them  to  his  presence,  his  princi- 
pal object  being  to  discover  whether  they  had  done  wrong  through  igno- 
rance or  evil  intention.  "  It  sometimes  happened  that  the  justices  admit- 
ted their  ignorance ;  but  Alfred  then  earnestly  represented  to  them  their 
folly,  and  said,  '  I  wonder  at  your  great  rashness,  that  you,  who  have 
taken  from  God  and  myself  the  office  and  dignity  of  Wise  Men,  should 
have  entirely  neglected  the  studies  and  conduct  of  the  wise.  Therefore 
either  resign  your  temporal  power,  or  exercise  yourselves,  as  I  desire, 
more  zealously  in  the  study  of  wisdom.'" — See  Pauttis  Life  of  Alfred. 

*  The  remainder  of  the  Great  Charter  of  John  (except  the  54th  chap- 
ter) is  not  repeated  in  the  subsequent  Charters.  It  consists  of  provisions 
of  a  temporary  nature  rendered  necessary  by  the  recent  events,  and  which 
sufficiently  explain  themselves.  The  61st  and  62nd  chapters  deserve 
more  particular  attention.  Guizot  remarks  on  them, — "  It  is  not  enougb 
that  rights  should  be  recognised  and  promises  made,  it  is  further  necessary 
that  these  rights  should  be  respected,  and  that  these  promises  should  be 
fulfilled.  The  61st  and  last  article  of  the  Great  Charter  is  intended  to 
provide  this  guarantee.  It  is  there  said  that  the  barons  shall  elect 
twenty-five  barons  by  their  own  free  choice,  charged  to  exercise  all  vigi- 
lance that  the  provisions  of  the  Charter  may  be  carried  into  effect ;  the 
powers  of  these  twenty-five  barons  are  unlimited.  If  the  king  or  hia 
agents  allow  themselves  to  violate  the  enactments  of  the  Charter  in  the 
smallest  particular,  the  barons  will  denounce  this  abuse  before  the  king 


OF    THE   CONSTITUTION.  141 

writings  delivered  unto  us  by  our  English  subjects,  as 
securities  for  their  keeping  the  peace,  and  yielding  us 
faithful  service.  50.  We  will  entirely  remove  from 
our  bailiwicks  the  relations  of  Gerard  de  Atheyes,  so 
that  for  the  future  they  shall  have  no  bailiwick  in 
England  ;  we  will  also  remove  Engelard  de  Cygony, 
Andrew,  Peter,  and  Gyon,  from  the  Chancery  ;  Gyon 
do  Cygony,  Geoffrey  de  Marty n  and  his  brothers  ; 
Philip  Mark,  and  his  brothers,  and  his  nephew,  Geof- 
frey, and  their  whole  retinue.  51.  As  soon  as  peace  is 
restored,  we  will  send  out  of  the  kingdom  all  foreign 
soldiers,  cross-bowmen,  and  stipendiaries,  who  are 
come  with  horses  and  arms  to  the  prejudice  of  our 
people.  52.  If  any  one  has  been  dispossessed  or  de- 
prived by  us,  without  the  legal  judgment  of  his  peers, 
of  his  lands,  castles,  liberties,  or  right,  we  will  forth- 
with restore  them  to  him  ;  and  if  any  dispute  arise 
upon  this  head,  let  the  matter  be  decided  by  the  five- 
and-twenty  barons  hereafter  mentioned,  for  the  preser- 
vation of  the  peace.  As  for  all  those  things  of  which 
any  person  has,  without  the  legal  judgment  of  his 
peers,  been  dispossessed  or  deprived,  either  by  King 
Henry  our  father,  or  our  brother  King  Eichard,  and 
which  we  have  in  our  hands,  or  are  possessed  by 
others,  and  we  are  bound  to  warrant  and  make  good, 
we  shall  have  a  respite  till  the  term  usually  allowed 
the  crusaders  ;  excepting  those  things  about  which 
there  is  a  plea  depending,  or  whereof  an  inquest  hath 
been  made,  by  our  order,  before  we  undertook  the 
crusade,  but  when  we  return  from  our  pilgrimage,  or 
if  perchance  we  tarry  at  home  and  do  not  make  our 

and  demand  that  it  be  instantly  checked.  If  the  king  do  not  accede  to 
their  demand,  the  barons  shall  have  the  right,  forty  days  after  the  sum- 
mons has  been  issued  by  them,  to  prosecute  the  king,  to  deprive  him  of 
his  lands  and  castles  (the  safety  of  his  person,  of  the  qtieen,  and  of  their 
children  being  respected),  until  the  abuse  has  been  reformed  to  the  satis- 
faction of  the  barons."  He  points  out  also  the  effect  of  this  in  centrali« 
ring  the  council  of  barons. 


142  RISE   AND    PKOGRESS 

pilgrimage,  we  will  immediately  cause  full  justice  tc 
be  administered  therein.  53.  The  same  respite  we 
shall  have  (and  in  the  same  manner  about  adminis- 
tering justice,  disafforesting  the  forests,  or  letting 
them  continue)  for  disafforesting  the  forests,  which 
Henry  our  father,  and  our  brothtr  Richard  have  affor- 
ested ;  and  for  the  keeping  of  the  lands  which  are  in 
another's  fee,  in  the  same  manner  as  we  have  hitherto 
enjoyed  those  wardships,  by  reason  of  a  fee  held  of 
us  by  knight's  service  ;  and  for  the  abbeys  founded  in 
any  other  fee  than  our  own,  in  which  the  lord  of  the 
fee  says  he  has  a  right ;  and  when  we  return  from  our 
pilgrimage,  or  if  we  tarry  at  home,  and  do  not  make 
our  pilgrimage,  we  will  immediately  do  full  justice  to 
all  the  complainants  in  this  behalf.  54.  No  man 
shall  be  taken  or  imprisoned  upon  the  appeal  *  of  a 

*  An  appeal,  in  the  sense  wherein  it  is  here  used,  does  not  signify- 
any  complaint  to  a  superior  court  of  an  injustice  done  by  an  inferior  one, 
which  is  the  general  use  of  the  word ;  but  it  here  means  an  original 
suit  at  the  time  of  its  first  commencement.  An  appeal,  therefore,  when 
spoken  of  as  a  criminal  prosecution,  denotes  an  accusation  by  a  private 
subject  against  another  for  some  heinous  crime,  demanding  punishment 
on  account  of  the  particular  injury  suffered,  rather  than  for  the  offence 
against  the  public. 

This  private  process  for  the  punishment  of  public  crimes  had  probably 
its  origin  in  those  times  when  a  private  pecuniary  satisfaction,  called  a 
wereffild,  was  constantly  paid  to  the  party  injured,  or  his  relative,  to  expi- 
ate enormous  offences.  As,  therefore,  during  the  continuance  of  this  cus- 
tom a  process  was  certainly  given  for  recovering  the  weregild  by  the  party 
to  whom  it  was  due,  it  seems  that  when  these  offences  by  degrees  grew  no 
longer  redeemable,  the  private  process  was  still  continued,  in  order  to  in- 
sure the  infliction  of  punishment  upon  the  offender,  though  the  party  in- 
jured was  allowed  no  pecuniary  compensation  for  the  offence. — i  SI.  Cam.. 
812. 

An  appeal  of  felony  might  have  been  brought  for  crimes  committed, 
either  against  the  parties  themselves  or  their  relations.  The  crimes 
against  the  parties  themselves  were,  larceny,  rape,  and  arson,  and  for 
these,  as  well  as  for  mayhem,  the  persons  robbed,  ravished,  maimed,  or 
whose  houses  were  burnt,  might  have  instituted  this  private  process.  The 
only  crime  against  one's  relation  for  which  an  appeal  could  be  brought 
was  that  of  killing  him  by  either  murder  or  manslaughter.  But  this  could 
not  be  brought  by  every  relation,  but  only  by  the  wife  for  the  death  of 
her  husband,  or  by  the  heir  male  for  the  death  of  his  ancestor,  which 


OF   THE   CONSTITUTION.  143 

woman,  for  the  death  of  any  other  than  her  husband. 
55.  All  unjust  and  illegal  fines  made  by  us,  and  all 
amerciaments  imposed  unjustly  and  contrary  to  the 
law  of  the  land,  shall  be  entirely  given  up,  or  else  be 
left  to  the  decision  of  the  five-and-twenty  barons 
hereafter  mentioned  for  the  preservation  of  the  peace, 
or  of  the  major  part  of  them,  together  with  the 
aforesaid  Stephen,  archbishop  of  Canterbury,  if  he 
can  be  present,  and  others  whom  he  shall  think  fit  to 
take  along  with  him  ;  and  if  he  cannot  be  present, 
the  business  shall  notwithstanding  go  on  without 
him  ;  but  so  that  if  one  or  more  of  the  aforesaid  five- 
and-twenty  barons  be  plaintiffs  in  the  same  cause, 
they  shall  be  set  aside  as  to  what  concerns  this  partic- 
ular affair,  and  others  be  chosen  in  their  room,  out  of 
the  said  five-and-twenty,  and  sworn  by  the  rest  to 
decide  the  matter.  56.  If  we  have  disseised  or  dis- 
possessed the  Welsh,  of  any  lands,  liberties,  or  other 
things,  without  the  legal  judgment  of  their  peers, 
either  in  England  or  in  Wales,  they  shall  be  immedi- 
ately restored  to  them  ;  and  if  any  dispute  arise  upon 
this  head,  the  matter  shall  be  determined  in  the 
marche  by  the  judgment  of  their  peers  ;  for  tene- 
ments in  England  according  to  the  law  of  England, 
for  tenements  in  Wales  according  to  the  law  of 
Wales,  for  tenements  of  the  marche  according  to  the 


heirship  was  also  confirmed  by  oil  ordinance  of  King  Henry  the  First  to 
the  four  nearest  degrees  of  blood.  It  was  given  to  the  wife  on  account  of 
the  loss  of  her  husband ;  therefore,  if  she  married  again  before  or  pending 
her  appeal,  it  was  lost  and  gone  ;  or  if  she  married  after  judgment,  sho 
could  not  demand  execution.  The  heir  must  also  have  been  heir  male, 
and  such  a  one  as  was  the  next  heir  by  the  course  of  the  common  law  at 
the  time  of  the  killing  of  the  ancestor.  But  this  rule  had  three  exceptions  : 
first,  if  the  person  killed  left  an  innocent  wife,  she  only,  and  not  the  heir 
could  have  the  appeal ;  secondly,  if  there  were  no  wife,  and  the  heir  were 
accused  of  the  murder,  the  person  who  next  to  him  would  have  been  heir 
male  should  have  brought  the  appeal ;  thirdly,  if  the  wife  killed  her  hus- 
band, the  heir  might  appeal  her  of  the  death. — See  further,  4  Jil.  Cv 
315. 


144  RISE    AND   PROGRESS 

law  of  the  marclie  ;  the  same  shall  the  Welsh  do  to 
us  and  our  subjects.  57.  As  for  all  those  things  of 
which  a  Welshman  hath,  without  the  legal  judgment 
of  his  peers,  been  disseised  or  deprived  of  by  King 
Henry  our  father,  or  our  brother  King  Richard,  and 
which  we  either  have  in  our  hands,  or  others  are  pos- 
sessed of,  and  we  are  obliged  to  warrant  it,  we  shall 
have  a  respite  till  the  time  generally  allowed  the  cru- 
saders ;  excepting  those  things  about  which  a  suit  is 
depending,  or  whereof  an  inquest  has  been  made  by 
our  order,  before  we  undertook  the  crusade  :  but  when 
we  return,  or  if  we  stay  at  home  without  performing 
our  pilgrimage,  we  will  immediately  do  them  full  jus- 
tice, according  to  the  laws  of  the  Welsh  and  of  the 
parts  before  mentioned.  58.  We  will  without  delay 
dismiss  the  son  of  Llewellin,  and  all  the  Welsh  host- 
ages, and  release  them  from  the  engagements  they 
have  entered  into  with  us  for  the  preservation  of  the 
peace.  59.  We  will  treat  with  Alexander,  King  of 
Scots,  concerning  the  restoring  his  sisters  and  hos- 
tages, and  his  right  and  liberties,  in  the  same  form  and 
manner  as  we  shall  do  to  the  rest  of  our  barons  of 
England  ;  unless  by  the  charters  which  we  have  from 
his  father,  William,  late  King  of  Scots,  it  ought  to 
be  otherwise  ;  but  this  shall  be  left  to  the  determina- 
tion of  his  peers  in  our  court.  60.  All  the  aforesaid 
customs  and  liberties,  which  we  have  granted  to  be 
holden  in  our  kingdom,  as  much  as  it  belongs  to  us, 
towards  our  people  of  our  kingdom,  as  well  clergy  as 
laity  shall  observe,  as  far  as  they  are  concerned,  to- 
wards their  dependents.  61.  And  whereas,  for  the 
honour  of  God  and  the  amendment  of  our  kingdom, 
and  for  the  better  quieting  the  discord  that  has  arisen 
between  us  and  our  barons,  we  have  granted  all  these 
things  aforesaid ;  willing  to  render  them  firm  and 
lasting,  we  do  give  and  grant  our  subjects  the  under- 
written security,  namely,  that  the  barons  may  choose 


OF    THE   CONSTITUTION.  145 

five-and-twenty  barons*  of  the  kingdom,  whom  they 
think  convenient  ;  who  shall  take  care,  with  all  their 
might,  to  hold  and  observe,  and  cause  to  be  observed, 
the  peace  and  liberties  wo  have  granted  them,  and  by 
this  our  present  charter  confirmed  ;  so  that  if'  we,  our 
justiciary,  our  bailiffs,  or  any  of  our  officers,  shall  in 
any  circumstance  fail  in  the  performance  of  them, 
towards  any  person,  or  shall  break  through  any  of 
these  articles  of  peace  and  security,  and  the  offence 
be  notified  to  four  barons  chosen  out  of  the  five-and- 
twenty  before  mentioned,  the  said  four  barons  shall 
repair  to  us,  or  our  justiciary,  if  we  are  out  of  the 
realm,  and,  laying  open  the  grievance,  shall  petition 
to  have  it  redressed  without  delay :  and  if  it  be  not 
redressed  by  us,  or  if  we  should  chance  to  be  out  of 
the  realm,  if  it  should  not  be  redressed  by  our  justici- 
ary, within  forty  days,  reckoning  from  the  time  it  has 
been  notified  to  us,  or  to  our  justiciary,  (if  we  should 
be  out  of  the  realm,)  the  four  barons  aforesaid  shall 
lay  the  cause  before  the  rest  of  the  five-and-twenty 
barons  ;  and  the  said  five-and-twenty  barons,  together 
with  the  community  of  the  whole  kingdom,  shall  dis- 
train and  distress  us  in  all  possible  ways,  by  seizing 
our  castles,  lands,  possessions,  and  in  any  other  man- 
ner they  can,  till  the  grievance  is  redressed  according 
to  their  pleasure  ;  saving  harmless  our  own  person, 
and  the  persons  of  our  queen  and  children  ;  and  when 
it  is  redressed,  they  shall  obey  us  as  before.  And  any 
person  whatsoever  in  the  kingdom,  may  swear  that  he 
will  obey  the  orders  of  the  five-and-twenty  barons 
aforesaid,  in  the  execution  of  the  premises,  and  will 
distress  us,  jointly  with  them,  to  the  utmost  of  his 
power  ;  and  we  give  public  and  free  liberty  to  any  one 
that  shall  please  to  swear  to  this,  and  never  will  hinder 
any  person  from  taking  the  same  oath.  62.  As  for  all 

*  See  note  at  p.  156,  supra. 

7 


146  RISE   AND   PROGRESS 

those  of  our  subjects  who  will  not,  of  tlieir  own  ac- 
cord, swear  to  join  the  five-and-twenty  barons  in 
distraining  and  distressing  us,  we  will  issue  orders  to 
make  them  take  the  same  oath  as  aforesaid.  And  if 
any  one  of  the  five-and-twenty  barons  dies,  or  goes 
out  of  the  kingdom,  or  is  hindered  any  other  way  from 
carrying  the  things  aforesaid  into  execution,  the  rest 
of  the  said  five-and-twenty  barons  may  choose  another 
in  his  room,  at  their  discretion,  who  shall  be  sworn 
in  like  manner  as  the  rest.  In  all  things  that  are 
committed  to  the  execution  of  these  five-and-twenty 
barons,  if,  when  they  are  all  assembled  together,  they 
should  happen  to  disagree  about  any  matter,  and  some 
of  them,  when  summoned,  will  not,  or  cannot,  come, 
whatever  is  agreed  upon,  or  enjoined,  by  the  major 
part  of  those  that  are  present,  shall  be  reputed  as 
firm  and  valid  as  if  all  the  five-and-twenty  had  given 
their  consent ;  and  the  aforesaid  five-and-twenty  shall 
swear,  that  all  the  premises  they  shall  faithfully  ob- 
serve, and  cause  with  all  their  power  to  be  observed 
And  we  will  not,  by  ourselves,  or  by  any  other,  pro- 
cure anything  whereby  any  of  these  concessions  and 
liberties  may  be  revoked  or  lessened  ;  and  if  any  such 
thing  be  obtained,  let  it  be  null  and  void  ;  neither 
shall  we  ever  make  use  of  it,  either  by  ourselves  or 
any  other.  And  all  the  ill  will,  indignations,  and 
rancours  that  have  arisen  between  us  and  our  sub- 
jects, of  the  clergy  and  laity,  from  the  first  breaking 
out  of  the  dissensions  between  us,  we  do  fully  remit 
and  forgive  :  moreover  all  trespasses  occasioned  by  the 
said  dissensions,  from  Easter  in  the  fifteenth  year  of 
our  reign,  till  the  restoration  of  peace  and  tranquillity, 
v*  hereby  entirely  remit  to  all,  both  clergy  and  laity, 
and  as  far  as  in  us  lies  do  fully  forgive.  We  have, 
moreover,  caused  to  be  made  for  them  the  letters 
patent  testimonial  of  Stephen,  lord  archbishop  of 
Canterbury,  Henry,  lord  archbishop  of  Dublin,  and 


OF   THE   CONSTITUTION.  147 

the  bishops  aforesaid,  as  also  of  master  Pandulph,  for 
the  security  and  concessions  aforesaid.  63.  Wherefore 
we  will  arid  firmly  enjoin,  that  the  Church  of  Eng- 
land be  free,  and  that  all  the  men  in  our  kingdom 
have  and  hold  all  the  aforesaid  liberties,  rights,  and 
concessions,  truly  and  peaceably,  freely  and  quietly, 
fully  and  wholly  to  themselves  and  their  heirs,  of  us 
and  our  heirs,  in  all  things  and  places,  for  ever,  as  is 
aforesaid.  It  is  also  sworn,  as  well  on  our  part  as  on 
the  part  of  the  barons,  that  all  the  things  aforesaid 
shall  be  observed  bond  fide  and  without  evil  subtilty. 
Griven  under  our  hand,  in  the  presence  of  the  "wit- 
nesses above  named,  and  many  others,  in  the  meadow 
called  Euningmede,  between  Windsor  and  Staines, 
the  15th  day  of  June,  in  the  17th  year  of  our  reign. 


148  RISE   AND   PROGRESS 


CHAPTER  XIL 

Benewala  of  the  Great  Charter  in  Henry  the  Third's  Reign.— The  C.  alter  as  confirmed 
by  Edward  L  and  subsequent  Kings. — The  Statute  Oonfirrnatio  Cartarum. — All 
Taxation  without  consent  of  Parliament  made  illegal. 

JOHN  died  soon  after  the  grant  of  the  Great  Charter, 
leaving  England  torn  by  civil  war  and  foreign  inva- 
sion, both  of  which  had  been  caused  by  his  perfidy 
and  tyranny.  The  first  act  of  the  great  Earl  of 
Pembroke,  as  Protector  of  the  Kingdom  on  the  ac- 
cession of  Henry  III.,  was  to  renew  the  Great  Char- 
ter, but  with  several  changes,  the  most  important  of 
which  was  the  omission  of  the  provisions  concerning  the 
manner  and  reason  of  levying  scutages.  It  assigned 
as  a  reason  for  the  omission  of  this  and  other  weighty 
matters,  that  the  prelates  and  barons  had  agreed  to 
respite  the  consideration  of  them  till  further  delibera- 
tion could  be  had,  when  they  and  such  other  things 
as  pertained  to  the  welfare  of  all  should  be  most 
fully  reviewed  and  set  right.  The  stipulations  in 
John's  Charter,  which  were  of  a  temporary  nature, 
and  referred  to  the  troops  and  allies  of  that  king  and 
his  barons  respectively,  were  of  course  not  copied  into 
Henry's  Charters.  And  the  provisions  for  empower- 
ing the  twenty-five  chosen  barons  to  redress  violations 
of  the  Charter,  were  not  renewed.  A  duplicate  of 
the  Charter  was  forthwith  transmitted  to  Ireland,  for 


OF   THE  CONSTITUTION.  149 

the  benefit  of  the  king's  subjects  there  ;  and  writs 
were  s^nt  to  the  sheriffs  of  the  several  English  coun- 
ties, commanding  them  to  cause  the  Charter  of  Lib- 
erties to  be  publicly  read  in  full  County  Court,  and  to 
see  that  its  ordinances  were  fully  observed  within  theii 
several  jurisdictions.  In  the  next  year,  after  the 
French  Dauphin  had  been  driven  out  of  the  kingdom, 
and  the  malcontent  English  who  had  fought  under 
him  had  returned  to  their  allegiance,  the  Charter  of 
Liberties  was  granted  again,  and  on  this  occasion  some 
words  of  infinite  value  were  added  to  the  clause  by 
which  the  King  binds  himself  to  respect  the  property 
and  the  personal  rights  of  his  subjects.  The  Charter 
was  again  renewed  by  Henry  in  the  ninth  year  of  his 
reign,  at  which  same  time  the  Charter  of  the  Forest 
was  granted,  whereby  many  of  the  most  atrocious 
iniquities  of  the  primitive  game-laws  were  redressed. 
The  two  Charters  were  five  times  renewed  between 
this  period,  and  Henry's  death.  At  some  of  these 
renewals  temporary  variations  were  introduced  ;  but 
it  is  in  the  form  in  which  it  was  promulgated  in  the 
ninth  year  of  Henry's  reign  that  the  Great  Charter 
was  solemnly  confirmed  by  his  successor,  and  in  that 
form  it  appears  at  the  head  v)f  our  statute  book,  ^here 
(as  before  mentioned)  it  is  panted  Irom  the  insptxi- 
*nus  and  confirmation  of  it  by  Edward  I. 


Carta. 
THE  GREAT  CHARTER, 

(TRANSLATED  AS  IN  THE  STATUTES  AT  LARGE,) 
MADE  IN  THE  NINTH  YEAR  OF  KING  HENRY  THE  THIRD, 
AND   CONFIRMED    BY    KING    EDWARD    THE   FIRST,  IN 
THE  FIVE-AND-TWENTIETH  YEAR  OF  HIS  REIGN. 

EDWARD,  by  the  grace  of  God,  King  of  England,  Lord 


L50  RISE    AND    PROGRESS 

of  Ireland,  and  Duke  of  Guyan  :  to  all  archbishops,  &o.  "Wo 
have  seen  the  Great  Charter  of  the  Lord  Henry,  sometimes 
King  of  England,  our  Father,  of  the  Liberties  of  England  in 
these  words : 

"  HENRY,  by  the  grace  of  God,  King  of  England,  Lord 
of  Ireland,  Duke  of  Normandy  and  Guyan,  and  Earl  of 
Anjou :  To  all  archbishops,  bishops,  abbots,  priors,  earls 
barons,  sheriffs,  provosts,  and  officers,  and  to  all  bailiffs  and 
other  our  faithful  subjects,  which  shall  see  this  present  Char- 
ter, greeting :  Know  ye  that  We,  unto  the  honour  of  Al- 
mighty God,  and  for  the  salvation  of  the  souls  of  our  progeni- 
tors aud  successors,  kings  of  England,  to  the  advancemeni" 
of  Holy  Church  and  amendment  of  our  realm,  of  our  mere 
and  free  will  have  given  and  granted  to  all  archbishops, 
bishops,  abbots,  priors,  earls,  barons,  and  to  all  freemen  of 
this  our  realm,  these  liberties  following,  to  be  kept  in  our 
kingdom  of  England  for  ever." 

CHAPTER  i. 

A   Confirmation  of  Liberties. 

"  FIRST,  we  have  granted  to  God,  and  by  this  our  present 
Charter  have  confirmed  for  us  and  our  heirs  for  ever,  that  the 
Church  of  England  shall  be  free,  and  shall  have  all  her 
whole  rights  and  liberties  inviolable.  We  have  granted  also, 
and  given  to  all  the  freemen  of  our  realm,  for  us  and  our 
heirs  for  ever,  these  liberties,  under-written,  to  have  and  to 
hold  to  them  and  their  heirs,  of  us  and  our  heirs  for  ever." 

CHAPTER  II. 

The  Relief  of  the  King's  Tenant  of  full  Age. 
[Same  as  2nd  Chapter  of  John's  Charter.] 

CHAPTER  III. 

The  Wardship  of  the  Heir  within  Age.     Tho  Heir  a  KnigM 
[Similar  to  3rd  Chapter  of  John's  Charter.] 

CHAPTER  IV. 

No  waste  shall  J>e  made  by  a  Guardian  in  waste  lands, 
[Same  as  4th  Chapter  of  John's  Charter  ] 


OF   THE    CONSTITUTION.  151 

CHAPTER  V. 
Guardians  shall  maintain  the  Inheritance  of  Wards. 

Of  Bishoprics,  &c. 

[Similar  to  5th  Chapter  of  John's  Charter,  with  addition 
of  like  provisions  against  the  waste  of  ecclesiastical  posses- 
sions while  in  the  king's  hand  during  a  vacancy  in  the 
eee,  &c.] 

CHAPTER  VI. 

Heirs  shall  fie  Married  without  Disparagement. 
[Similar  to  6th  Chapter  of  John's  Charter.] 

CHAPTER  VII. 
A  Widow  shall  have  her  Marriage,  Inheritance  and  Quarantine 

The  King's  Widow,  &c. 

[Similar  (with  additions)  to  the  7th  and  8th  Chapters  of 
John's  Charter.] 

CHAPTER  VIII. 

How  Sureties  shall  fie  charged  to  the  King. 
[Same  as  9th  Chapter  of  John's  Charter.] 

CHAPTER   IX. 

The  Liberties  of  London  and  other  Cities  and  Towns  confirmed, 
[Same  as  13th  Chapter  of  John's  Charter.] 

CHAPTER   X. 

None  shall  distrain  for  more  service  than  is  due. 
[Same  as  16th  Chapter  of  John's  Charter.] 

CHAP1ER  XI. 

Common  Pleas  shall  not  follow  the  King^s  Court. 
[Same  as  17th  Chapter  of  John's  Charter.] 

CHAPTERS  XII.  AND  XIII. 
When  and  before  whom  Assizes  shall  fie  taken.    Adjourniirtntfor 

Difficulty.     Assizes  of  Darrien  Presentment. 
[Analogous  to  18th  and  19th  Chapters  of  John's  Charter.] 


152  RISE   AND   PROGRESS 

CHAPTER  XIV. 

How  men  of  all  sorts  shall  be  amerced,  and  by  whom. 
[Same  as  20th  and  21st  Chapters  of  John's  Charter.] 

CHAPTERS  XV.  AND  XVI. 

Making  and  defending  of  Bridges  and  Banks, 
|  Similar  to  23rd  Chapter  of  John's  Charter.] 

CHAPTER  XVIL. 

Holding  Pleas  of  the  Crown. 
[Same  as  24th  Chapter  of  John's  Charter.] 

CHAPTER  XVIII. 

The  King's  Debtor  dying,  the  King  shall  be  first  paid. 
[Same  as  26th  Chapter  of  John's  Charter.] 

CHAPTERS  XIX.,  XX.,  AND  XXI. 

Purveyors  for  a   Castle.     Doing  of  Castle-ward.     Talcing  oj 

Horses,    Carts,  and   Woods. 

'Same  as  28th,  29th,  30th,  and  31st  Chapters  of  John's 
Charter.] 

CHAPTER  XXII. 

How  long  Felons'  Land  shall  be  holden  by  the  Sing. 
[Same  as  32nd  Chapter  of  John's  Charter.] 

CHAPTER  XXIII. 

In  what  places  Wears  shall  be  put  down. 
[Same  as  33rd  Chapter  of  John's  Charter.] 

CHAPTER  XXIV. 

In  what  case  a  Prcecipe  in  Capite  is  grantable. 
[Same  as  14th  Chapter  of  John's  Charter.] 

CHAPTER  XXV. 

There  shall  be  but  one  Measure  through  the  Realm. 
[Same  as  35th  Chapter  of  John's  Charter.] 

CHAPTER  XXVI. 

Inquisition  of  Life  and  Member. 

[Same  as  38th  Chapter  of  John's  Charter.] 


OF   THE   CONSTITUTION.  153 

CHAPTER  XXVII. 

Tenure  of  the  King  in  Socage,  and  of  another  by  Knightf*  Ser- 
vice.     Petit  Serjeanty. 
[Same  as  37th  Chapter  of  John's  Charter.] 

CHAPTER  XXVIII. 

Wctger  of  Law  shall  not  be  without  witness. 
[Same  ad  38th  Chapter  of  John's  Charter.] 

CHAPTER  XXIX. 

None  shall  be  condemned  or  injured  in  property,  person,  or  liber- 
ty, without  Trial.    Justice  shall  not  be  sold  or  deferred.  * 

NULLUS  LIBER  HOMO  CAPIATUR  VEL  IMPRISONETUR,  AUT  DIS- 
SEISIATUR  DE  ALIQUO  LIBERO  TENEMENTO  SUO  VEL  LIBERTATI- 
BUS  VEL  LIBERIS  CONSUETUDINIBUS  SUIS,  AUT  UTLAGETUR  AUT 
EXULET  AUT  ALIQUO  ALIO  MODO  DESTRUATURJ  NEC  SUPER  EUM 
IBIMUS,  NEC  SUPER  EUM  MITTEMUS,  NISI  PER  LEGALE  JUDICIUM 
PARIUM  SUORUM  VEL  PER  LEGEM  TERR^3.  NuLLI  VENDEMUS, 
NULLI  NEGABIMUS,  AUT  DIFFEREMUS  RECTUM  VEL  JUSTITIAM. 

No  FREEMAN  SHALL  BE  TAKEN,  OR  IMPRISONED,  OR  BE  DIS- 
SEISED OF  HIS  FREEHOLD,  OR  LIBERTIES,  OR  FREE  CUSTOMS,  OR 
BE  OUTLAWED  OR  EXILED,  OR  ANY  OTHERWISE  DESTROYED}  NOB 
WILL  'WE  PASS  UPON  HIM  NOR  CONDEMN  HIM,  BUT  BY  LAWFUL 
JUDGMENT  OF  HIS  PEERS,  OR  BY  THE  LAW  OF  THE  LAND.  WE 
WILL  SELL  TO  NO  MAN,  WE  WILL  NOT  DENY  OR  DEFER  TO  ANY 
MAN,  EITHER  JUSTICE  OR  RIGHT. 

CHAPTER  XXX. 

Merchant  Strangers  coming  into  this  Realm  shall  be  well  vsecL 
[Same  as  41st  Chapter  of  John's  Charter.] 

CHAPTER  XXXI. 

Tenure  of  a  Barony  coming  into  the  King's  hands  by  Escheat, 
[Same  as  43rd  Chapter  of  John's  Charter.] 

CHAPTER   XXXII. 

Lands  shall  not  be  Aliened  to  the  Prejudice  of  the  Lord's  Service 
\i.  e.  Lord  of  the  Fee]. 

*  See  39th  and  40th  chapters  of  John's  Charter,  and  notes  at  p.  134, 
tupra.     See  also  p.  149,  supra. 

7* 


154  RISE   AND   PROGRESS 

CHAPTER  XXXIII. 
Patrons  of  ASbeys  shall  hare  the  custody  of  them  in  time  of 

Vacation. 
[Same  as  46th  Chapter  of  John's  Charter.] 

CHAPTER  XXXIV. 

In  what  cases  only  a  Woman  shall  have  an  Appeal  of  Death. 
[Same  as  51st  Chapter  of  John's  Charter.] 

CHAPTER  XXXV, 
At  what  time  shall  he  kept  a  County  Court,  a  Sheriff's  Tourn^ 

and  a  Leet. 

"  No  county  court  shall  from  henceforth  be  holden  but 
from  month  to  month :  and  where  a  greater  term  has  been 
ased,  it  shall  be  greater.  Neither  shall  any  sheriff  or 
his  bailiff  keep  his  tourn  in  the  hundred  but  twice  in  the  year ; 
and  nowhere  but  in  due  and  accustomed  place,  that  is  to  say, 
once  after  Easter,  and  again  after  the  Feast  of  Saint  Michael. 
And  the  view  of  frank-pledge  shall  be  likewise  at  Saiht 
Michael's  term,  without  occasion ;  so  that  every  man  may 
have  his  liberties,  which  he  had  and  was  accustomed  to  have 
in  the  time  of  King  Henry  our  grandfather,  or  which  he 
hath  purchased  since.  The  view  of  frank-pledge  shall  be 
done  so,  that  our  peace  may  be  kept,  and  that  the  tything  be 
wholly  kept  as  it  hath  been  accustomed ;  and  that  the  sheriff 
seek  no  occasions,  and  that  he  be  content  with  so  much  as 
the  sheriff  was  wont  to  have  for  his  view-making,  in  the  time 
of  King  Henry  our  grandfather."  * 

*  The  sheriff's  tourn  is  (or  rather  was)  the  county  court  for  criminal 
matters,  and  for  the  preservation  of  the  peace ;  and  that  officer  used  to 
hold  it  in  the  respective  hundreds  of  the  county  by  rotation.  The  courts 
leet  are  minor  local  courts  of  the  same  character  as  that  of  the  tourn, 
having  the  same  jurisdiction,  but  being  limited  to  smaller  districts.  Ac- 
cording to  Lord  Coke  (2  Inst.  70),  the  courts  leet  were  carved  out  of  the 
courts  of  the  tourn,  "  for  the  ease  of  the  people,  that  they  should  have 
justice  done  them  at  their  own  doors."  It  is  more  probable  that  they  are 
the  original  hundred  courts  of  the  Saxon  times,  though  the  area  of  a 
manor  often  became  the  area  of  their  jurisdiction,  instead  of  the  old  area 
of  a  hundred.  The  right  of  holding  a  court  leet  was  often  granted  to  the 
lord  of  a  manor,  partly  for  the  benefit  of  his  tenants,  resident  in  the  ma- 
nor, and  partly  for  the  benefit  of  the  lord  himself;  who,  besides  the  judicial 
authority  and  dignity  which  he  gained,  derived  pecuniary  advantagsi 


OF   THE   CONSTITUTION.  155 

CHAPTER  XXXVI. 

2fb  Land  shall  ~be  given  in  Mortmain* 

"  It  shall  not  be  lawful  from  henceforth  to  any  to  give  hia 
lands  to  any  religious  house,  and  to  take  the  same  land  again 
to  hold  of  the  same  house.  Nor  shall  it  be  lawful  to  any 
house  of  religion  to  take  the  lands  of  any,  and  to  lease  the 
same  to  him  of  whom  he  received  it :  if  any  from  henceforth 
give  his  lands  to  any  religious  house,  and  thereupon  be  con- 
vict, the  gift  shall  be  utterly  void,  and  the  land  shall  accrue 
to  the  lord  of  the  fee." 


from  the  fines  and  fees  of  court ;  generally  also  when  the  leet  continued 
to  be  held  for  a  particular  hundred,  some  neighbouring  lord  received 
from  the  Crown  the  right  of  presiding  in  it  personally,  or  by  his  steward. 
The  criminal  jurisdiction  both  of  the  tourn  and  the  leet  was  reduced 
within  very  narrow  limits  after  the  24th  clause  of  the  Great  Charter  (see 
supra,  p.  127)  respecting  the  holding  pleas  of  the  Crown.  But  these 
courts  still  continued  to  be  of  practical  importance  in  many  matters  of 
local  self-government.  Besides  the  important  duty  of  the  view  of  frank- 
pledge  (see  supra,  p.  45),  the  assembled  inquest  or  jury  of  the  leet  inquired 
and  made  presentments  respecting  persons  of  notorious  evil  fame  ;  res- 
pecting cheats,  especially  with  regard  to  the  vendors  of  unwholesome 
provisions ;  respecting  escapes  from  prisons,  breaches  of  the  peace,  public 
nuisances,  and  many  other  subjects.  The  court  of  leet  (or  tourn)  could 
impose  a  fine  or  amerciament  on  any  person  who  was  presented  as  an 
offender  in  any  of  these  respects,  and  such  fine  or  amerciament  could  be 
levied  by  distress.  Headboroughs  or  constables  for  the  hundred  were 
also  chosen  at  the  court  leet,  and  many  other  local  officers.  The  tourn 
had  become  obsolete  before  Lord  Coke's  time.  Courts  leet  are  still  held 
for  the  appointment  of  constables  in  some  hundreds,  but  they  practically 
exercise  no  other  functions.  For  further  information  as  to  these  courts, 
see  Coke's  second  "  Institute,"  p.  69.  Scriven  on  "  Copyholds,"  vol.  ii., 
and  Comyns's  "  Digest,"  title  Leet.  With  regard  to  the  local  criminal 
jurisdiction  exercised  in  particular  places  in  England  by  special  charter 
or  usage,  see  an  excellent  note  in  the  second  volume  of  Hallam's  "  Mid- 
dle Ages,"  p.  347. 

*  Alienation  in  mortmain,  in  mortua  manu,  is  an  alienation  of  lands  or 
tenements  to  any  corporation,  sole  or  aggregate,  ecclesiastical  or  tem- 
poral. But  these  purchases  having  been  chiefly  made  by  religious  houses, 
in  consequence  whereof  the  lands  became  perpetually  inherent  in  one 
dead  hand,  this  hath  occasioned  the  general  appellation  of  mortmain  to 
be  applied  to  such  alienations,  and  the  religious  houses  themselves  to  be 
principally  considered  in  forming  the  statutes  of  mortmain. — See  2  £1 
Com.  2G8. 


156  RISE   AND   PROGRESS 

CHAPTER  XXXVII. 
A  Subsidy  in  Respect  of  this  Charter  and  the  Charter  of  tht 

Forest,  granted  to  the  King. 

"  Escu%g.e  fr°m  henceforth  shall  be  taken  like  as  it  was 
wont  to  be  m  the  time  of  King  Henry  our  grandfather ;  re- 
serving to  all  archbishops,  bishops,  abbots,  priors,  templars, 
hospitalers,  earls,  barons,  and  all  persons  as  well  spiritual  as 
temporal,  all  their  free  liberties  and  free  customs,  which  they 
have  had  in  time  passed.  And  all  these  customs  and  liberties 
aforesaid,  which  we  have  granted  to  be  holden  within  this  our 
realm,  as  much  as  appertaineth  to  us  and  our  heirs,  we  shall 
observe.  And  all  men  of  this  our  realm,  as  well  spiritual  as 
temporal  (as  much  as  in  them  is),  shall  observe  the  same 
against  all  persons  in  like  wise.  And  for  this  our  gift  and 
grant  of  these  liberties  and  of  other  contained  in  our  Charter 
of  liberties  of  our  forest,  the  archbishops,  bishops,  abbots, 
priors,  earls,  barons,  knights,  freeholders,  and  other  our  sub- 
jects, have  given  unto  us  the  fifteenth  part  of  all  their  move- 
ables.  And  we  have  granted  unto  them,  for  us  and  our  heirs, 
that  neither  we  nor  our  heirs  shall  procure  or  do  anything, 
whereby  the  liberties  in  this  Charter  contained  shall  be  in- 
fringed or  broken.  And  if  anything  be  procured  by  any  per- 
son contrary  to  the  premises,  it  shall  be  had  of  no  force  nor 
effect.  These  being  witnesses,  Lord  B.  Archbishop  of  Can- 
terbury, E.  Bishop  of  London,  I.  Bishop  of  Bath,  P.  of 
Winchester,  H.  of  Lincoln,  R.  of  Salisbury,  W.  of  Rochester, 
W.  of  Worcester,  J.  of  Ely,  H.  of  Hereford,  R.  of  Chiches- 
ter,  W.  of  Exeter,  Bishops  :  the  Abbot  of  St.  Edmonds,  the 
Abbot  of  St.  Albans,  the  Abbot  of  Bello,  the  Abbot  of  St. 
Augustines  in  Canterbury,  the  Abbot  of  Evesham,  the  Abbot 
of  Westminster,  the  Abbot  of  Bourgh  St.  Peter,  the  Abbot 
of  Reding,  the  Abbot  of  Abindon,  the  Abbot  of  Malmsbury, 
the  Abbot  of  Winchcomb,  the  Abbot  of  Hyde,  the  Abbot  of 
Certesy,  the  Abbot  of  Sherburn,  the  Abbot  of  Cerne,  the 
Abbot  of  Abbotebir,  the  Abbot  of  Middleton,  the  Abbot  of 
Seleby,  the  Abbot  of  Cirencester  :  H.  de  Burgh,  Justice,  H. 
Earl  of  Chester  and  Lincoln,  W.  Earl  of  Salisbury,  W.  Earl 
of  Warren,  G.  de  Clare  Earl  of  Gloucester  and  Hereford, 
W.  de  Ferrars  Earl  of  Derby,  W.  de  Mandeville  Earl  of 
Essex,  H.  de  Bygod  Earl  of  Norfolk,  W.  Earl  of  Albemarle, 


OF    THE    CONSTITUTION.  157 

H  Earl  of  Hereford,  J.  Constable  of  Chester,  R.  de  Ros,  R. 
Fitzwalter,  R.  de  Vyponte,  W.  de  Bruer,  R.  de  Muntefiohet^ 
P.  Fitzherbert,  W.  de  Aubenie,  J.  Gresly,  F.  de  Breus,  J.  de 
Monemue,  J.  Fitzallen,  H.  de  Mortimer,  W.  de  Beauchamp, 
W.  de  St.  John,  P.  de  Mauly,  Brian  de  Lisle,  Thomas  de 
Multon,  R.  de  Argenteyn,  G.  de  Nevil,  W.  Mauduit,  J.  de 
Balun  and  others." 

"  We,  ratifying  and  approving  these  gifts  and  grants  afore- 
said, confirm  and  make  strong  all  the  same  for  us  and  our 
heirs  perpetually  ;  and  by  the  tenor  of  these  presents  do  re- 
new the  same,  willing  and  granting  for  us  and  our  heirs, 
that  this  Charter,  and  all  and  singular  its  articles  forever 
shall  be  steadfastly,  firmly,  and  inviolably  observed.  Al- 
though some  articles  in  the  same  Charter  contained  yet 
hitherto  peradventure  have  not  been  kept,  we  will,  and,  by 
authority  royal,  command,  from  henceforth  firmly  they  be  ob- 
served. In  witness  whereof  we  have  caused  these  our  letters 
patent  to  be  made.  Witness  Edward,  our  Son,  at  Westmin- 
ster, the  twelfth  day  of  October,  in  the  twenty-fifth  year  of 
our  reign." 

Magna  Carta,  in  this  form,  has  teen  solemnly 
confirmed  by  our  kings  and  parliaments  upwards  of 
thirty  times  ;  but  in  the  twenty-fifth  year  of  Edward 
J^  much  more  than  a  simple  confirmation  of  it  was 
obtained  for  England.  As  has  been  already  men- 
tioned, the  original  Charter  of  John  forbad  the  levy- 
ing of  escuage  save  by  consent  of  the  Great  Council 
of  the  land  ;  and  although  those  important  provisions 
were  not  repeated  in  Henry's  Charter,  it  is  certain 
that  they  were  respected.  Henry's  barons  frequently 
refused  him  the  subsidies  which  his  prodigality  was 
always  demanding.  Neither  he  nor  any  of  his  minis- 
ters seems  ever  to  have  claimed  for  the  Crown,  the 
prerogative  of  taxing  the  landholders  at  discretion  : 
but  the  sovereign's  right  of  levying  money  from  his 
towns  and  cities  under  the  name  of  tallages  was 
constantly  exercised  during  Henry  III.'s  reign  and 
during  the  earlier  portion  of  his  son's.  But,  by  the 


158  RISE    AND   PROGRESS 

statute  of  Edward  I.,  intituled  Confirmatio  Charta- 
rum,  all  private  property  was  secured  from  royal 
spoliation  and  placed  under  the  safeguard  of  the  great 
council  of  all  the  realm. 

King  Edward  had  committed  several  violent  and 
arbitrary  measures  in  order  to  raise  the  moneys  which 
his  wars  required.  The  details  of  these  transactions 
will  be  found  in  Guizot's  "  History  of  Kepresentative 
Government,"  and  in  Blackstone's  "  Introduction  to 
the  Charter,"  as  well  as  in  the  regular  Histories  of 
England.  Providentially  for  this  nation,  wise  and 
fearless  patriots  were  still  to  be  found  among  our 
barons,*  who  led  the  national  opposition  to  these  royal 
aggressions.  But  Edward,  like  Elizabeth  in  after 
ages,  was  a  prince  of  sagacity  as  well  as  of  spirit,  and 
yielded  to  the  popular  feeling.f  While  he  was  in 
Flanders,  in  1297,  his  son  (who  presided  as  regent  in 
the  English  Parliament)  passed,  in  the  king's  name, 
the  statute  usually  called  "  Confirmatio  Chartarum," 
in  the  then  usual  form  of  a  charter.  It  was  sent  over 
to  King  Edward,  and  signed  by  him  at  Ghent  ;  $  and 
was  afterwards  (after  some  attempts  at  evasion)  sol- 
emnly confirmed  by  him  in  a  parliament  held  by 
himself  in  person  in  the  year  1300. 

The  material  portions  of  this  Statute,  or  Charter, 
are  as  follows  : — 


*  See  Hallam's  just  eulogy  on  the  earls  of  Hereford  and  Essex, 
"  Hist  Mid.  Ages,"  vol.  iiL,  p.  2,  note. 

•f  "  To  know  when  to  yield  in  government  is  at  least  as  necessary  as 
to  know  when  to  lose  in  trade ;  and  he  who  cannot  do  the  first,  is  so  Jittle 
likely  to  govern  a  kingdom  well,  that  it  is  more  than  probable  he  would 
govern  a  shop  ill." — Bolwgbroke. 

J  See  Blackstone's  "  Introduction,"  p.  xcv. 


OF    THE    CONSTITUTION.  159 

"  CONFIRMATIO   CHARTARUM. 

ANNO    VICESIMO    QUINTO   EDV.    I. 
CAP.   V. 

"  And  for  so  much  as  divers  people  of  our  realm  are  in 
fear  that  the  aids  and  tasks  which  they  have  given  to  us  be- 
forctime,  towards  our  wars  and  other  business,  of  their  own 
grant  and  good  will  (howsoever  they  were  made),  might  turn 
to  a  bondage  to  them  and  their  heirs  because  they  might  be 
at  another  time  found  in  the  rolls,  and  likewise  for  the  prises 
taken  throughout  the  realm,  in  our  name,  by  our  ministers  ; 
we  have  granted  for  us  and  our  heirs  that  we  shall  not  draw 
such  aids,  tasks,  nor  prises,  into  a  custom  for  anything  that 
hath  been  done  heretofore,  be  it  by  roll  or  any  other  prece- 
dent that  may  be  founden. 

CAP.  VI. 

"Moreover,  we  have  granted  for  us  and  our  heirs,  as  well 
to  archbishops,  bishops,  abbots,  priors,  and  other  folk  of  holy 
church,  as  also  to  earls,  barons,  and  to  all  the  commonalty  of 
the  land,  that  for  no  business  from  thenceforth  we  shall  take 
such  manner  of  ajds^  'tasks,  nor  prises,  but  by  the  common 
consent  of  all  *  the  realm,  and  for  t tie  common  profit  there- 
of, saving  the  ancient  aids  and  prises  due  and  accustomed."  f 

*  "  Par  commun  assent  de  tut  le  roiaume."  The  version  in  our 
etntute  book  omits  the  important  word  "  All." 

t  Lord  Coke  says  the  ancient  aids  pour  jUe  marler,  &c.,  (see  supra,  p. 
1 f*4),  are  here  meant :  and  the  ancient  takings  or  seizures  are  here  in- 
tended, such  as  waifes,  strays,  the  goods  of  felons  and  outlaws,  deodands, 
nod  the  like. — Second  Institut.  p.  529. 


160  BISE   AND   PROGRESS 


CHAPTER  XIII. 

The  Principles  of  the  Constitution  traced  In  the  Charter. — Kingship  in  England. — 
i.ts  powers  and  limitations. — Parliament — Origin  of  the  House  of  Peers.— Of  th« 
two  branches  of  the  House  of  Commons. — Trial  by  Jury. — Writ  of  Habeas  Corpus. 
— Origin  and  value  of  these  Constitutional  Rights. 

HAVING  now  examined  the  text  of  Magna  Carta  and 
its  Supplement,  we  may  pause  and  consider  how  far 
they  recognize  or  establish  those  great  primary  princi- 
ples of  our  constitution,  which  have  been  denned  in 
the"  first  chapter  of  this  work,  and  which  may  conve- 
niently be  repeated  here. 

The  government  of  the  country  by  an  hereditary 
sovereign,  ruling  with  limited  powers,  and  "bound  to 
summon  and  consult  a  parliament  of  the  whole  realm 
comprising  hereditary  peers,  and  elective  representa- 
tives of  the  commons. 

That  without  the  sanction  of  parliament  no  tax 
of  any  kind  can  be  imposed,  and  no  law  can  be  made, 
repealed,  or  altered. 

That  no  man  be  arbitrarily  fined  or  imprisoned, 
that  no  man's  property  or  liberties  be  impaired,  and 
that  no  man  be  in  any  way  punished,  except  after  a 
lawful  trial. 

Trial  by  jury 

That  justice  shall  not  be  sold  or  delayed. 

In  the  first  place,  with  regard  to  the  government 
of  the  country,  the  Great  Charter  and  its  supplements 


OF    THE   CONSTITUTION.  161 

clearly  recognize  the  authority  of  an  hereditary  sove* 
reign.  The  repeated  expressions  in  them  of  Hie  king 
granting  for  himself  and  his  heirs  the  various  popular 
privileges,  which  they  secure,  are  themselves  sufficient 
to  prove  this.  It  would  not  be  difficult  to  point  out 
in  them  recognitions  of  the  king  being  the  fountain 
of  honour,0  of  the  king  being  the  fountain  of  justice,* 
of  the  inviolability  of  the  royal  person,*  and  of  other 
rules  respecting  English  royalty,  which  will  hereafter 
be  more  fully  noticed.  But,  without  resorting  to 
literal  criticism,  no  one  can  read  the  Charter  without 
feeling  perfectly  certain  that  royalty  is  a  fundamental 
portion,  and  the  primary  governing  power  of  our 
political  system.  Indeed,  not  only  in  England,  but 
throughout  Europe,  during  the  middle  ages,  the 
existence  of  a  "  permanent  suzerain,  vested  with  large 
rights  of  a  mixed  personal  and  proprietary  character 
over  his  vassals,  though  subject  also  to  certain  obliga- 
tions towards  them,"  was  always  presumed  as  indis- 
pensably necessary  for  the  existence  of  political 
society,  f  "  The  rights  of  the  chief  were  always 
conceived  as  constituting  a  Status  apart,  and  neither 
conferred  originally  by  the  grant,  nor  revocable  at  the 
pleasure  of  those  over  whom  they  were  exercised. 
This  view  of  the  essential  nature  of  political  author- 
ity was  a  point  in  which  all  the  three  great  elements 
of  modern  European  society — the  Teutonic,  the  Ko- 
man,J  and  the  Christian,  concurred,  though  each  in  a 
different  way  and  with  different  modifications/'  Thus 
io  England  we  find  the  nation  constantly  striving  to 

*  See  sections  14,  39,  36,  45,  and  61  of  John's  Charter  and  notes  In 
the  Isist  chapter. 

t  See  Grote's  "  History  of  Greece,"  vol.  iii.,  p.  13,  et  seq. ;  the  reflec- 
tions on  the  discontinuance  of  Kingship  in  Hellas,  compared  with  its  pre- 
servation in  Mediaeval  Europe,  deserve  an  attentive  perusal. 

J  •'.  e.  the  Imperial  Roman.  The  influence  of  Republican  Rome,  when 
her  history  and  literature  were  first  made  familiar  to  Europe  by  the  revi- 
val of  classical  studies,  was  certainly  not  monarchical. 


162  RISE   AND   PROGRESS 

regulate  and  temper,  by  solemn  compact  and  laws, 
the  power  of  its  royal  chief,  but  never  attempting,  in 
early  times,  to  dispense  with  the  existence  of  kingly 
chiefdom.  Even  when  the  oppressiveness  and  proved 
perfidy  of  individual  monarchs  induced  the  nation  to 
take  away  practical  power  from  them,  and  to  choose 
an  executive  board,  who  should  rule  in  their  name, 
such  provisions,  however  necessary,  were  always  con- 
sidered and  designed  to  be  of  a  temporary  nature. 
Nor  even  when  kings  were  solemnly  deposed,  as  in 
the  cases  of  the  second  Edward  and  the  second 
Richard,  was  kingship  ever  assailed.  A  new  sovereign 
was  instantly  placed  in  the  room  of  the  deposed  one, 
in  order  that  the  nation  might  not  be  deprived  for  a 
moment  of  the  monarchical  head,  that  was  reckoned 
politically  Indispensable. 

The  peaceable  and  undisputed  accession  of  Ed- 
ward I.,  though  he  was  far  distant  from  England  at 
the  time  of  the  death  of  Henry  III.,  established  not 
only  that  the  crown  was  hereditary  in  the  royal 
family,  but  also  that  it  was  hereditary  according  to 
the  principles  of  descent  which  regulate  a  private 
inheritance.* 

It  appears  with  equal  clearness  from  the  Charter, 
that  the  royal  power  which  forms  part  of  our  consti- 
tution, is  a  limited  power.  The  king's  Council  sanc- 
tions the  royal  will.  The  very  charters  purport  in 
their  preambles  to  be  granted  by  the  advice  of  the 
great  spiritual  and  lay  councillors  of  the  Crown.  We 
shall  have  occasion  to  consider  the  importance  of  this 


*  The  form  of  popular  consent  expressed  at  the  coronation  was  long 
considered  necessary  to  complete  the  royal  title.  The  heir  to  the  throne 
had  an  inchoate  right  immediately  on  his  predecessor's  death,  hut  his  reign 
dated  from  his  coronation.  Such  was  the  case  till  ^Edward  L's  reign, 
which  dated  from  the  day  (foiur  days  after  Henry  IIL's  death)  when  the 
barons  swore  fealty  to  him  in  his  absence,  and  his  peace  was  proclaimed. — 
See  Hallam's  Middle  Ayes,  vol.  ii.  p.  342. 


OF    THE    CONSTITUTION.  163 

more  fully,  when  we  examine  the  origin  of  our  parlm- 
ments.  But  the  great  principle  which  emphatically 
distinguishes  a  constitutional  from  an  absolute  mon- 
archy—the principle  that  the  Crown  is  subject  to  the 
law — requires  our  present  attention,  and  it  is  fully 
established  by  the  Great  Charter.  A  ting,  who 
avows  that  he  is  bound  to  inflict  no  punishment,  save 
according  to  the  law  of  the  land,*  and  that  he  cannot, 
save  by  the  authority  of  the  law,  touch  a  freeman's 
property  or  person,  or  control  his  freedom  of  action  ; 
a  king,  who  by  a  public  instrument  surrenders  all 
fines  and  amerciaments  which  he  has  imposed  con- 
trary to  the  law  of  the  land,f — completely  admits 
the  supremacy  of  law  over  royal  power.  And  in  fact, 
although  the  government  of  our  Anglo-Norman  kings 
was  often  extremely  arbitrary,  they  never  were  sup- 
posed, either  by  others  or  by  themselves,  to  be  abso- 
lute irresponsible  lords  of  the  lives  and  properties  of 
their  subjects,  like  the  despots  of  the  Eastern  World. 
But,  though  by  common  understanding  the  king  was 
bound  to  consult  his  Great  Council  before  he  made 
new  laws  or  exacted  fresh  taxes,  and  though  the  very 
essence  of  feudalism  involved  a  reciprocity  of  duties 
between  lord  and  vassal,  the  checks  on  royal  caprice 
and  royal  oppression  were  always  vague,  and  generally 
ineffectual  before  the  epoch  of  the  Great  Charter. 
From  that  time  forward  the  limitations  of  the  royal 
prerogative  were  unmistakable  and  undeniable,  and 
"  Sub  lege  Bex"  became  a  sure  constitutional  maxim, 
though  forensic  sycophants  in  after  ages  were  some- 
tunes  found  who  whispered  its  converse.^ 

*  Magna  Carta,  sec.  39,  and  notes  thereon,  supra,  p.  134. 

\  Sec.  55,  supra,  p.  143. 

J  See  Hallam's  "  Middle  Ages,"  vol.  ii.  p.  431,  for  the  proofs  found  in 
Braeton,  a  judge  at  the  end  of  Henry  III.'s  reign,  of  the  limitations  of  pre- 
rogative by  law.  "  The  king  can  do  nothing  but  what  he  can  do  by  law," 
<fec.  See,  also,  Guizot  on  "  Representative  Government,"  part  2,  lect.  1, 
ad  Jin,  The  volume  of  "  Ancient  English  Political  Songs,"  published  by 


164  EISE   AND   PROGRESS 

Next  let  us  trace  the  great  principle  of  tlie  sove- 
reign of  England  being  bound  to  summon  and  consult 
a  parliament  of  the  whole  realm,  comprising  hereditary 
peers  and  elective  representatives  of  the  commons. 
This  important  topic  requires  consideration  under 
several  aspects.  We  must  first  ascertain  the  exist- 
ence of  such  a  body  as  a  Great  Council  of  the  realm, 
or  Parliament ;  and  next  examine  of  whom  and  how 
it  was  composed.  This  will  lead  us  to  examine  the 
origin  of  each  of  the  two  Houses  of  Parliament  ;  and 
with  regard  to  the  Lower  House,  we  shall  have  to 
trace  separately  the  growth  of  its  two  branches,  its 
knights  of  the  shire,  and  its  representatives  of  cities 
and  boroughs.  Together  with  the  general  principle 
of  the  authority  of  parliament,  and  its  composition, 
we  may  conveniently  consider  the  maxims  relating  to 
legislation  and  taxation, — and  the  important  fact  that 
we  have  had  one  parliament  for  all  England,  and  not 
separate  parliaments  for  separate  provinces. 

Among  all  the  nations  of  the  Gothic  stock, 
whether  of  its  Scandinavian  or  of  its  Teutonic  branch, 
and  in  all  the  kingdoms  founded  by  them  out  of 
conquered  Roman  provinces,  councils  or  assemblies  of 
some  form  existed,  whose  consent  the  ruling  chief  was 

the  Camden  Society,  also  gives  good  proof  of  how  the  clergy  and  educa- 
ted part  of  the  laity  in  the  13th  century  reasoned  on  this  topic.  The  fine 
poem  on  the  baron's  war,  in  Henry  III.'s  reign,  (which  must  have  been 
written  after  the  battle  of  Lewes,  1264,  before  the  battle  of  Evesham, 
1265,)  contains  many  spirited  passages  as  to  the  necessary  restrictions  of 
royal  power.  The  patriotic  poet  says :  "  It  is  a  vulgar  error  to  assert 
that  the  course  of  law  depends  on  the  king's  will.  The  truth  is  the  re- 
verse ;  for  the  king  may  fail,  but  the  law  stands  firm.  The  law  nilee 
even  the  royal  dignity : — 

Dicitur  vulgariter  ut  rex  vult,  lex  vadit, 
Veritas  vult  aliter  ;  nam  lex  stat,  rex  cadit. 
»  »  *  * 

•        Legem  quoque  dicimus  regis  dignitatem 

Regere,"  &c. 

An  excellent  condensation  of  the  best  passages  of  this  remarkable 
poem  will  be  found  in  Mr.  Blaauw*s  "  History  of  the  Barons'  War,"  one 
of  the  best  historical  monographs  that  we  possess. 


OF    THE    CONSTITUTION.  1G5 

bound  to  obtain,  in  order  to  legalize  important  meas- 
ures of  State.  We  have  already  drawn  attention  to 
the  assemblies  of  the  principes,  and  the  general 
assemblies  of  freemen  among  the  primitive  Germans,* 
and  to  the  Tings  of  the  primitive  Danes,  f  The 
student  may  also  here  usefully  refer  to  what  has  been 
said  respecting  the  witenagemotes  of  the  Anglo-Sax- 
ous.J  At  least  he  must  bear  in  mind  that  it  was 
only  with  the  sanction  of  this  witan  that  an  Anglo- 
Saxon  king  could  make  new  laws  or  impose  new 
taxes  ;  that  the  prelates  and  the  great  nobles  and 
thanes  attended  these  assemblies  ;  and  that  the  infe- 
rior class,  the  ceorls,  though  not  directly  represented 
there,  yet  were  not  without  protectors  and  advocates  ; 
inasmuch  as  certain  of  the  magistrates,  whom  the 
men  of  every  borough  and  township  regularly  elected 
from  among  themselves  for  the  purpose  of  local  self- 
government,  might  be  present  at  the  witan,  for  the 
purpose  of  obtaining  redress  for  any  wrong  which 
might  have  been  committed,  and  for  the  redress  of 
which  the  ordinary  tribunals  were  inadequate.  When 
once  present  at  the  witan,  though  ostensibly  only  for 
the  purpose  of  remedial  justice,  the  ceorl  magistrates 
must  also  have  had  some  influence  in  other  matters  : 
inasmuch  as  the  cheerful  co-operation  of  the  bulk  of 
the  community  in  carrying  any  particular  measure 
into  effect,  never  can  be  thought  immaterial,  even  by 
those  who  have  the  power  of  enforcing  sullen  obedi- 
ence. The  Anglo-Saxon  polity  was  overthrown  by 
the  conquering  Normans  ;  but  the  recollection  of  this 
virtual  though  indirect  system  of  representation,  must 
have  survived  among  the  bulk  of  the  population  ; 
and  may  have  greatly  facilitated  the  adoption  and 
insured  the  good  working  of  the  subsequent  parlia- 
mentary representation  of  the  Commons. 

*  See  svpra,  p.  1 7  J  Chapter  iv.  titpra,  p.  48. 

t  See  supra,  p.  34. 


166  RISE   AND   PROGRESS 

It  has  also  been  pointed  out*  that  though  we 
have  no  authority  for  minute  details  of  the  polity  of 
the  Normans  in  Normandy,  prior  to  the  conquest  of 
this  country  by  Duke  William,  thus  much  is  certain, 
that  there  was  a  council  of  tbq  Norman  barons  which 
the  dukes  were  obliged  on  all  important  occasions  to 
summon  and  consult.  It  was  not  likely  that  they,  by 
whose  help  William  won  the  crown  of  this  country, 
and  to  whom  he  parcelled  out  its  lands  as  rewards, 
would  consent  to  forego  in  their  new  abodes  the 
political  rights  which  they  had  enjoyed  in  their  old 
homes  across  the  Channel.  The  Anglo-Norman  king 
summoned  and  consulted  his  great  Council,  as  he  had 
done  while  merely  a  Norman  duke.f  All  who  held 
land  by  military  tenure  immediately  of  the  Crown, 
had  a  right  to  attend,  and  were  expected  to  attend 
the  king's  court  on  the  solemn  days  of  council,  and 
all  these  were  originally  styled  the  king's  barons. J 
Besides  these,  the  prelates,  and  the  heads  of  the  chief 
abbeys  and  priories  formed  here,  as  in  every  country 
of  Christendom,  an  essential  part  of  the  Great  Coun- 
cil. No  other  persons  of  any  class  whatever  had  the 
right  to  appear  there,  either  in  person,  or  by  any  sort 
of  representative,  to  take  part  in  the  proceedings  ; 
though  petitioners  for  justice  still  flocked  thither,  as 
to  the  highest  court  of  the  realm. 

Many  among  the  large  number  of  the  tenants-in- 
chief,  by  reason  of  their  comparative  poverty,  the 
distance  of  their  estates  from  the  cities  where  the 
Council  was  usually  convened,  and  other  causes,  soon 
ceased  to  attend  as  regularly  as  the  more  powerful 
and  wealthy  nobles.  These  last  were  soon  termed 
the  greater  barons,  and  ultimately,  the  titles  of 

*  See  supra,  p.  55. 

f  See  Hallam'a  "  Middle  Ages,"  vol.  ii.   p.  319,  and  vol.  iii.  p.  4,  et 
teg.     Guizot  on  "  Representative  Government,"  part  ii.  lect.  4.   • 
t  See  Hallam's  "  Middle  Ages,  vol.  iii.  p.  6,  et  seq. 


OF    THE   CONSTITUTION.  167 

**  peer "  and  "  baron/'  wliich  had  first  been  common 
to  all  the  king's  immediate  tenants,  were,  in  speaking 
of  the  kingdom  generally,  exclusively  applied  to  the 
heads  of  a  few  great  houses,  who,  largely  endowed 
with  lands,  and  constant  members  of  the  Great  Coun- 
cil, were  clearly  distinguishable  in  rank  and  in  circum- 
stances from  the  mass  of  the  inferior  tenants-in-chief. 
Traces  of  the  distinction  appear  earlier  than  John's 
reign,  but  in  that  king's  Great  Charter  the  line  is 
drawn  decisively  and  broadly  between  these  two  bodies, 
which  we  may  safely  call,  in  modern  phraseology,  the 
nobility  and  the  gentry  of  the  realm.  By  the  14th 
chapter  of  John's  Charter,  the  king  binds  himself  in 
order  to  constitute  the  General  Council  for  the  grant 
of  pecuniary  aids,  that  it  shall  be  summoned  thus — 
"We  shall  cause  the  archbishops,  bishops,  abbots, 
earls*  and  greater  barons  to  be  separately  summoned 
by  our  letters.  And  we  shall  cause  our  sheriffs  and 
bailiffs  to  summon  generally  all  others  who  hold  of  us 
in  chief." 

With  respect  to  the  spiritual  lords  no  particular 
comment  here  is  necessary.  We  principally  direct 
our  attention  to  the  origin  of  the  temporal  peers. 
Altogether  we  see  in  the  words  of  the  Charter,  which 
have  just  been  quoted,  the  clear  original  of  our  Upper 
House  of  Parliament,  consisting  of  lords  spiritual  and 
temporal.  And,  as  the  temporal  peerage  was  thus  a 
body  originally  composed  of  the  most  powerful  land- 
owners in  the  kingdom,  it  naturally  became  an  heredi- 
tary peerage  without  any  express  enactment  to  thaf. 
etfect.  This  will  appear  clear,  if  we  call  to  mind 
that  the  power  of  devising  real  estates  did  not  exist 

*  The  title  "  Earl,"  under  the  first  Anglo-Norman  kings,  meant  that 
ita  holder  was  governor  of  a  county  or  province.  By  degrees  it  became  a 
more  titular  distinction.  The  title  of  duke  was  first  granted  to  a  peer  in 
Edward  III.'s  reign  ;  that  of  marquis  in  Richard  II. ;  that  o/  viaconnt  in 
Henry  VI. 


1G8  RISE   AND   PROGRESS 

for  many  ages  after  the  grant  of  the  Great  Charter  ; 
and,  although  alienation  with  the  consent  of  the  lord, 
and  upon  paying  him  a  fine,  was  permitted  by  law, 
the  entire  transfer  of  large  estates  by  such  means 
could  seldom  or  never  have  occurred,  for  the  simple 
and  obvious  reason,  tl&t  there  were  no  wealthy  capit- 
alists to  come  forward,  and  buy  the  whole  lands  of  a 
mighty  but  impoverished  baron  at  a  single  bargain. 
As,  therefore,  the  estates  of  the  great  barons  descend- 
ed generally  from  heir  to  heir,  and  as  each  heir  on 
coming  into  possession  had  the  same  right  as  his 
predecessor  to  be  treated  as  a  great  baron  of  the 
realm,  the  idea  of  hereditary  descent  became  giadu- 
ally  associated  with  the  status  of  a  peer.  And  this 
theory  of  the  descent  of  peerage  at  last  prevailed  so 
far  as  to  be  extended  to  a  new  species  of  peers :  to 
men  who  held  no  baronial  possessions,  but  whom  our 
kings  summoned  by  writ  to  meet  and  consult  among 
the  prelates,  and  magnates,  and  the  chief  men  of  the 
realm.  This  mode  of  creating  peers  by  writ  is  said 
to  have  been  first  practised  in  Edward  I/s  reign  ;  and 
it  appears  to  have  been  established  as  early  as  Eichard 
II.'s  reign,  that  such  a  writ  of  summons  to  parlia- 
ment, and  the  fact  of  having  sat  there  by  virtue  of 
such  a  writ,  gave  an  hereditary  right  to  the  descend- 
ants of  the  person  so  summoned.  The  modern  form 
of  the  sovereign  creating  a  peer  by  letters  patent 
dates  from  the  reign  of  Richard  II.  By  an  almost 
invariable  usage,  the  letters  patent  creating  a  peer, 
direct  its  hereditary  descent.  Whether  in  default  of 
such  words  the  peerage  would  be  only  a  peerage  for 
life,  and  whether  it  is  in  the  power  of  the  Crown  to 
grant  a  peerage  that  shall  not  be  hereditary,  are 
interesting  questions  on  which  high  authorities  differ.* 

*  See  Bowyer*s  "  Commentaries  on  the  Constitutional  Law  of  England," 
p.  461.;  and  see  generally,  as  to  the  early  English  peerage,  Ilallam'i 
"  Middle  Ages,"  vol.  iii.  p.  123,  aud  supplemental  uote  at  p.  234-. 


•       OF    THE   CONSTITUTION.  1G9 

We  next  come  to  the  rise  and  progress  of  our 
Commons  House  of  Parliament  ;  and  it  will  be  con- 
venient to  deal  separately  with  its  two  branches — the 
knights  of  the  shire,  and  the  borough  members. 

The  14th  clause  of  the  Great  Charter  of  John, 
after  providing  that  the  prelates  and  great  barona 
shall  be  summoned  individually,  ordains  that  the  king 
shall,  by  his  sheriffs  and  bailiffs,  summon  generally 
all  others  who  hold  of  the  king  in  chief.  There  is 
nothing  said  here  about  any  two  or  any  other  number 
in  each  county  being  elected  to  sit  as  representatives 
of  the  rest.  But  if  we  can  satisfy  ourselves  that  the 
idea  and  the  practice  of  representation  were  at  this 
period  becoming  familiar  to  the  English,  we  can 
readily  understand  that  the  practice  of  representation 
in  this  instance  also  might  be  tacitly  annexed  to  this 
provision  of  the  Great  Charter  ;  and,  then,  if  we 
consider  that,  by  virtue  of  the  14th  clause,  the  mass 
of  inferior  tenants-in-chief  in  each  county  would,  at 
the  summons  of  their  sheriff,  elect  certain  individuals 
of  their  body  to  represent  them  in  the  Great  Council 
of  the  realm,  we  see  a  clear  recognition  of  that  part 
of  the  supreme  assembly,  which  now  consists  of  the 
county  members  of  the  House  of  Commons,  and  we 
find  the  principle  of  representation  also. 

From  the  very  first  establishment  of  the  Normans 
in  this  country  we  find  traces  of  the  representative 
system.  The  causes  why  this  system  of  government 
was  so  seldom  and  so  unsuccessfully  attempted  by  the 
classic  States  of  Greece  and  Borne,  and  why  it  grew 
and  throve  in  mediseval  Europe,  are  most  interesting 
to  investigate  but  the  discussion  would  occupy  undue 
space  in  this  work.*  Feudalism  favoured,  and  to 

*  See  Newman's  "  Contrasts  between  Ancient  and  Modern  History," 
and  Guizot  on  "European  Civilization,"  lect.  2.  The  most  remarkable 
instances  of  representative  government  in  purely  classic  times  are  the 
Ai'lueau  League,  and  the  system  adopted  by  the  Italian  Allies  in  the  Social 

8 


170  BISE   AND    PROGRESS 

some  exteDt  involved,  Representation.  The  lord  whc 
attended  his  sovereign's  council  was  supposed  to  vote, 
and  make  grants  of  money  on  his  own  behalf  and  on 
behalf  of  his  vassals  also.  The  abbots  (who  as  spir- 
itual lords  formed  a  considerable  part  of  the  council- 
lors of  every  sovereign  in  Christendom)  were  more 
completely  the  elected  representatives  of  the  whole 
body  of  the  members  of  their  respective  monasteries 
or  abbeys.  And  the  Church  did  much  to  diffuse  the 
idea  of  representative  action  by  councils,  her  synods, 
and  other  assemblies,  "  all  of  which  were  formed  on  the 
principle  of  a  virtual  or  express  representation,  and 
had  a  tendency  to  render  its  application  to  national 
assemblies  more  familiar."  * 

Specific  instances  of  election  of  individuals  from 
each  county  for  purposes  connected  with  the  adminis- 
tration of  government,  even  before  the  date  of  John's 
Charter,  can  be  proved  ;  and  it  is  reasonable  to  be- 
lieve that  very  many  more  must  have  taken  place 
which  no  chronicler  has  thought  it  necessary  to  men- 
tion, and  of  which  no  documentary  proof  has  sur- 
vived. Thus,  four  years  after  the  Conquest,  we  find 
William  directing  twelve  persons  to  be  chosen  for 
each  county,  to  inform  him  rightly  of  the  laws  and 
customs  of  England.f  Writs  are  extant  by  which 
King  John,  in  1214,  the  year  before  the  grant  of  the 
Great  Charter,  ordered  the  sheriffs  of  each  county  to 
send  to  a  general  assembly  at  Oxford  "  four  chosen 
knights,  in  order  to  discuss  with  us  the  affairs  of  our 
kingdom."  J  It  is  also  deserving  of  attention,  that 

war.  It  is  curious  to  speculate* what  Italica  would  have  been  if  it  had 
tonquered  Rome. 

*  See  Hallam's  "  Mid.  Ages,"  p.  11,  and  Guizot  on  "  European  Civili- 
zation," lect.  2. 

t  Hoveden,  343. 

J  "  Quatnor  discretos  milites  ad  loquendum  nobiscum  de  negotiis  regni 
no.stri."  See  Gui/ott's  remarks  on  these  writs  in  his  "History  of  Repre- 
sentative Government,"  lect.  11. 


OF   THE   CONSTITUTION.  171 

another  clause  of  John's  Charter  (the  48th)  very  ex- 
plicitly requires  an  election  of  knights  of  the  shire  in 
each  county  for  a  very  important  purpose.  It  directs 
that  "  all  evil  customs  concerning  forests,  &c.,  shall  be 
forthwith  inquired  into  in  each  county  by  twelve 
sworn  knights  of  the  same  shire,  chosen  by  creditable 
persons  of  the  same  county."  Moreover,  the  practice 
of  knights  being  chosen  from  each  district,  who,  in 
behalf  of  the  whole  body  of  the  county,  made  present- 
ments of  crimes  before  the  king's  judges  on  their  cir- 
cuits, must  have  materially  aided  in  habituating  the 
freeholders  of  each  county,  especially  the  knights,  to 
representative  action.  This  practice  was  certainly  as 
old  as  the  reign  of  Henry  the  Second,  and  was  proba- 
bly based  on  a  still  more  ancient  Anglo-Saxon  cus- 
tom.* An  ordinance  of  Richard  the  First  had  regu- 
lated the  procedure  for  about  twenty  years  before  the 
date  of  Magna  Carta.  Four  knights  were  chosen  for 
each  county,  who  then  proceeded  to  choose  others  for 
each  hundred  or  wapentake. 

We  must  also,  in  examining  the  14th  clause  of 
John's  Charter,  respecting  the  summoning  of  the 
mass  of  tenants-in-chief  to  the  Great  Council,  bear 
in  mind  who  the  officer  was  by  whom  the  summong 
was  to  be  given.  The  officer  specially  mentioned  in 
the  Great  Charter  for  this  purpose  is  the  sheriff.  The 
sheriff  would  naturally  execute  this  duty  at  the  coun- 
ty court,  of  which  he  was  the  presiding  officer,  and 
at  which  the  mass  of  the  tenants-in-chief,  like  other 
freeholders,  were  bound  to  attend.  It  may  be  taken 
for  certain  that  it  was  at  the  county  court  that  the 
twelve  knights,  under  section  48  of  the  Charter,  were 
to  be  elected  ;  that  it  was  there  that  the  four  knights 
were  chosen  for  the  presentment  of  offences,  under 
Richard  the  First's  ordinance  ;  and  it  was  there  that 
the  selections  of  knights  for  any  purpose  (such  as  that 

*  See  Forsyth's  "  History  of  Trial  by  Jury,"  p.  187. 


172  RISE   AND   PROGRESS 

which  had  occurred  in  1214)  were  made.  It  would 
naturally  follow  that  the  assembled  tenants-in-chief, 
who  heard  at  the  county  court  a  general  summons 
from  the  sheriff  to  the  Great  Council  of  the  Kealm, 
would  follow  their  usual  course,  and  appoint  some  of 
their  number  to  act  for  them.  They  may  not  have 
intended  to  waive  the  abstract  right  which  each  pos- 
sessed of  attending  in  person  ;  but  it  is  improbable 
that  on  the  receipt  of  a  mere  general  summons  they 
should  have  recommenced  a  practice  which  they  had 
laid  aside  as  burdensome.*  But  it  would  be  requisite 
to  pay  some  kind  of  obedience  to  the  royal  summons, 
and  the  mode  of  doing  so  would  naturally  be  by  elect- 
ing some  of  their  number  to  attend  and  act  for  the 
whole  body. 

The  clauses  of  John's  Charter  respecting  the 
manner  of  granting  aids  and  escuages,  and  the  sum- 
monses to  the  Great  Council,  were  not  repeated  in  the 
charter  as  issued  under  Henry  the  Third.  But  it  is 
clear  that  the  prohibition  against  levying  these  im- 
posts without  consent  was  considered  to  be  still  bind- 
ing ;  f  nor  did  Henry,  though  he  tallaged  the  royal 
towns  without  mercy,  venture  to  take  escuages  or  aids 
by  the  mere  exercise  of  royal  power. 

As  the  records  of  the  long  reign  of  this  Prince 
proceed,  we  find  the  proofs  of  county  representation 
hi  parliament  becoming  more  numerous  and  more 
clear.  Thus,  during  the  earlier  years  of  Henry  the 
Third,  we  find  repeated  instances  of  elections  of 
knights  of  the  shire,  for  the  purpose  of  presenting 
Ejiievauces,  and  for  assessing  on  each  individual  his 


*  See  supra,  p.  1 66. 

t  See  Hollam's  "  Middle  Ages,"  p  327.  It  will  be  observed  on  read- 
lug  the  conclusion  of  the  Great  Charter  as  issued  by  Henry  in  the  twenty- 
fifth  year  of  his  reign  (see  p.  156,  rvpra),  that  he  there  acknowledges  a 
grant  from  his  subjects. 


OF    THE    CONSTITUTION.  173 

fair  proportion  of  a  voted  subsidy.*  In  1245  we  find 
Henry,  in  the  very  terms  of  the  Great  Charter  of 
John,  summoning  the  great  barons  singly,  and  the 
other  tenants-in-chief  generally,  by  writs  to  the  sher- 
iffs of  each  county.  To  a  Great  Council  summoned 
in  1246,  the  title  of  Parliament  is  for  the  first  time 
given  by  the  old  chronicler,  which  had  previously  been 
applied  to  any  kind  of  conference,  but  thenceforth  in 
England  became  restricted  to  the  Great  Council  of 
the  nation.  In  1254  Henry  directs  a  parliament  to 
be  convened  at  London,  to  which  the  sheriff  of  each 
county  is  to  cause  to  be  elected  in  the  county  court 
two  good  and  discreet  knights  of  the  shire  whom  the 
men  of  the  shire  shall  have  chosen  for  this  purpose,  in 
the  stead  of  all  and  each  of  them,  to  consider  along 
with  the  knights  of  other  counties  what  aid  they  will 
grant  the  king 

Finally,  in  1265,  in  the  celebrated  parliament  sum- 
moned by  De  Montfort  in  Henry's  name,  at  which  the 
representation  of  the  boroughs  was  created,  the  repre- 
sentation of  the  counties  was  undoubtedly  placed  or 
confirmed  on  its  permanent  basis,  as  the  writs  are  still 
extant  by  which  each  sheriff  is  directed  to  return  two 
lawful,  good,  and  discreet  knights  for  his  shire. 

The  date  cannot  be  exactly  given  of  the  impor- 
tant feature  in  county  representation,  of  all  the  free- 
holders of  the  county  voting  in  the  election  of  knights 
of  the  shire,  and  not  merely  those  who  held  their  land 
directly  of  the  Crown  by  military  tenure.  It  is  obvi- 
ous that  this  extension  of  the  franchise  arose  from  the 
circumstance  of  the  knights  being  elected  at  the 
county  courts,  at  which  all  the  freeholders  of  the 
shire  did  suit  and  service.  And  although  opinions 
vary  as  to  the  precise  time  and  mode  in  which  it  was 

*  Hallam's  "  Middle  Ages,"  p.  13.     Goizot's  "  History  of  Keprosonta- 
tire  Government,"  part  ii.  lect.  11. 


174  RISE   AND   PROGRESS 

effected,  it  is  clear  that  at  a  very  early  period,  certain- 
ly during  Henry  III.'s  reign,  the  county  members  of 
England  were  elected  by  all  the  freeholders,  without 
regard  to  their  holding  by  military  or  by  socage  ten- 
ure, and  without  reference  to  their  being  or  not  being 
immediate  tenants  of  the  Crown.  Subsequently,  a 
statute  of  Henry  VI.  limited  the  county  franchise  to 
such  freeholders  only  as  possessed  free  tenements  of 
the  clear  annual  value  of  forty  shillings. 

For  the  commencement  of  the  other  branch  of 
our  House  of  Commons,  the  representatives  of  cities 
and  boroughs.,  we  must  take  a  date  subsequent  to  the 
Great  Charter  of  John.  Those  who  obtained  that 
Charter,  had  designed  to  give  the  citizens  and  bur- 
ghers of  England  the  same  protection  from  roya] 
rapacity  which  they  exacted  from  the  landholders. 
This  is  evident  from  the  "  Articuli  Magnas  Cartas,"  * 
the  rough  draft  of  the  barons'  stipulations  laid  before 
King  John  at  Kunnymede,  and  to  which  he  assented 
under  seal.  In  the  32nd  of  these  articles,  after  the 
provision  against  the  levy  of  scutages  or  aids,  save  by 
consent  of  the  General  Council  of  the  realm,  were 
added  the  important  words,  "  And  in  like  manner  be 
it  done  respecting  the  talliages  and  aids  of  and  from 
the  city  of  London  and  other  cities."  Through  some 
unexplained  neglect  or  manoeuvre,  these  important 
words  were  omitted  when  the  Charter  was  formally 
drawn  up  ;  and  the  cities  and  towns  were  left  exposed 
to  the  exactions  of  their  feudal  oppressors,  without 
any  protection  in  the  national  Council.  Simon  Do 
Montfort  was  the  first  statesman  who  perceived  and 

.—WB___— — — —  J. 

fully  appreciated  the  growing  importance  of  the  com- 
mercial middle  classes  in  England.  The  instances 
sometimes  asserted  of  borough  representation  before 
his  time  are  both  scanty  and  spurious  ;  but  to  tho 

*  See  them  at  length  in  Blackstoiie  on  the  Charter,  p.  1,  et  soq. 


OF    THE    CONSTITUTION.  175 

parliament  summoned  by  him  in  Henry's  name,  after 
the  battle  of  Lewes,  1264,  two  burgesses  were  return- 
ed for  every  borough  in  each  county,  the  writs  for 
which  are  still  preserved.  De  Montfort  soon  perished 
in  the  vicissitude  of  civil  war  ;  but  his  reform  meas- 
ure perished  not  with  him.  The  victorious  royalists 
felt  the  policy  of  enfranchising  the  trading  community 
of  the  land.  Parliaments  continued  to  be  summoned 
3n  De  Montfort's  plan  ;  and  when  at  length  the  Con- 
firmatio  Chartarum,  in  the  25th  year  of  Edward 
L,  by  the  enactments  which  have  above  been  quoted, 
made  the  consent  of  parliament  necessary  to  the  levy 
of  talliages,  of  subsidies,  and,  in  effect,  of  all  taxes, 
the  presence  of  the  burgesses  in  the  parliaments  of 
England  became  thenceforward  essential  and  indis- 
pensable. 

Had  our  kings  been  less  wasteful  and  warlike,  it- 
is  probable  that  parliaments  including  the  burgesses 
would  seldom  have  been  convened  ;  and  it  is  certain 
that  the  House  of  Commons  never  would  have  grown 
into  a  great  governing  organ  of  the  constitution. 
There  was  an  essential  difference  in  the  origin  of  the 
two  branches  of  the  Lower  House.  The  presence  of 
the  knights  of  the  shire  in  parliament  sprung  from 
the  old  Anglo-Norman  right  of  each  immediate  mili- 
tary tenant  of  the  king  to  be  present  at  the  king's 
Great  Council.  Councils  might  have  therefore  long 
continued  to  be  called  at  which  the  prelates,  the  great 
barons,  and  the  knights,  would  attend  and  take  part 
in  legislation  and  the  deliberations  of  State  affairs, 
but  in  which  the  burgesses  would  have  no  place. 
Councils  of  this  nature  were  in  fact  frequently  con- 
vened at  intervals  hi  Edward  the  First's  reign,  after 
the  introduction  of  what  we  should  term  full  parlia- 
ments ot  peers,  knights  of  the  shire,  and  burgesses.* 

'  Two  kinds  of  parliament  appeared  trader  Edward  I.     The  one  kind 
was  composed  only  of  the  higher  barons,  and  seemed  to  form  the  Grand 


176  RISE   AND   PROGRESS 

But  the  ample  domains  with  which  the  Conqueroi 
Had  fortified  the  Crown,  were  diminished  rapidly  by 
the  lavish  generosity  and  costly  campaigns  of  his  suc- 
cessors. Our  kings  were  in  constant  need  of  money, 
and  the  money  granted  by  the  burgesses  was  an  im- 
portant consideration.  The  frequent  convention  of 
parliaments,  therefore,  at  which  the  burgesses  attend- 
ed, became  indispensable  ;  and  the  gradual  strength- 
ening of  the  parliament  on  which  the  Crown  was  thus 
dependent  for  supplies  was  equally  inevitable.  As  it 
lias  been  pithily  said,  the  power  of  the  purse  drew 
after  it  other  power.  The  representatives  cf  cities 
and  boroughs  acquired  and  exercised  equal  rights  with 
the  knights  of  the  shire  ;  and  both  these  bodies,  by 
uniting  together,  gained  the  needful  authority  for 
their  country's  good  which  neither  could  have  singly 
maintained.* 

Council  of  the  king ;  in  the  other,  deputies  from  counties  and  boroughs 
had  a  seat. 

No  legal  and  fixed  distinction  existed  between  these  assemblies  ;  thcii 
attributes  were  almost  identical,  and  they  often  exercised  the*  same  pow- 
ers. However,  the  meetings  of  those  parliaments  which  were  composed 
only  of  the  higher  barons  were  very  frequent ;  they  took  place  regularly 
four  tunes  a  year.  The  other  parliaments,  on  the  contrary,  were  only 
convened  on  extraordinary  occasions,  and  when  it  was  necessary  to  ob- 
tain from  the  freeholders,  either  of  the  counties  or  of  the  towns  and 
boroughs,  some  general  impost. 

This,  however,  was  not  the  only  motive  which  could  lead  to  the  con- 
vocation of  this  last-mentioned  assembly,  which,  in  truth,  alone  deserves 
the  name  of  parliament.  Whenever  business  arose  of  so  great  importance 
that  the  concurrence  of  a  great  number  of  interests  were  judged  neces- 
sary, the  great  parliament  was  assembled,  and  by  this  cause  its  range  of 
deliberation  became  more  extended,  and  it  assumed  a  greater  consist- 
ency.— Guizot. 

*  It  is  very  instructive  to  compare  the  growth  and  durability  of  Eng- 
lish liberty  with  the  fate  of  that  at  Castile.  The  Castilian  cities  sent  de- 
puties to  the  cortes  long  before  the  English  towns  were  represented  in 
parliament.  These  popular  members  of  the  early  cortes  were  fully  equal 
in  sp;  rit  to  the  early  members  of  our  Commons  House,  and  had  much 
mor«  power.  But  the  inferior  nobility,  and  the  country  landowners  of 
Castile,  were  unrepresented.  Hence  the  cortes  of  Castile,  when  the  great 
itruggle  between  them  and  the  Crown,  in  the  reign  of  Charles  V.  (Charles 
L  of  Castile  j,  came  on  in  the  16th  century,  were  overthrown,  and  th« 


OF   THE   CONSTITUTION.  177 

The  constitutional  principle  that  the  Crown  should 
n.)t  tax  the  subject  without  the  consent  of  parliament 
was  undoubtedly  the  practical  mainspring  of  parlia- 
mentary power.  But  it  would  be  unjust  to  the  men 
of  the  thirteenth  century  to  suppose  that  they  had  no 
discernment  of  the  general  advantage  which  a  State 
acquires  when  the  exercise  of  political  power  is  carried 
on  from  the  amplest  basis  that  is  consistent  with  the 
due  influence  of  intelligence,  property,  and  rank.  Sir 
William  Temple  has  said  that  for  a  prince  to  govern 
all  by  all  is  the  great  secret  of  happiness  and  safety 
both  for  prince  and  people.*  Gleams  of  the  spirit  of 
this  precept  appear  in  the  political  poem  of  Henry 
the  Third's  time,  which  has  been  already  referred  to. 
For  example,  the  poet  (probably  a  friend  and  adviser 
of  De  Montfort)  bids  that  the  Commons  of  the  realm 
be  consulted,  and  that  the  opinion  of  the  whole  body 
of  the  people  be  made  known  : — 

"  Igitur  communitas  regni  consulatur, 
Et  quid  universitas  sentiat  sciatur." 

Then,  too,  we  find  an  archbishop  of  Canterbury,  in 
Edward  the  First's  reign,  in  a  letter  to  the  Pope, 
asserting  that  it  is  the  custom  of  the  kingdom  of 
England  that,  "  in  matters  which  regard  the  state  of 
that  kingdom,  the  advice  of  all  those  interested  in 
the  matter  should  be  consulted."  Guizot  observes  on 
this,  that  "  there  is  no  need  that  we  should  take  this 


eanse  of  constitutional  freedom  in  Spain  fell  with  them.  On  the  other 
hand,  it  is  well  to  watch  the  fatal  weakness  of  freedom  in  Poland,  where 
a  martial  nobility  and  gentry  had  the  fullest  rights,  but  where  the  towns 
were  allowed  no  political  power.  Kosciusko  and  his  compatriots  en- 
deavored to  reform  this,  but  it  was  too  late. 

*  Napoleon's  maxim  was  the  exact  converse.  "  Everything^/br  the 
people,  nothing  by  them.  The  fate  of  Napoleon  himself,  and  of  France 
both  under  and  after  him,  is  the  best  proof  of  the  superior  wisdom  of  the 
English  statesman. 

8* 


178  RISE   AND   PKOGKESS 

principle  in  its  most  rigorous  application  ;  it  is  not 
the  fact  that  all  those  who  were  interested  in  these 
matters  were  consulted  about  them  ;  but  the  senti- 
ment is  still  a  witness  of  the  progress  which  had 
already  been  made  by  the  ideas  of  a  free  and  public 
government."* 

We  have  examined  the  respective  origins  of  the 
elements  of  our  parliament ;  next  comes  the  very  im- 
portant subject  of  its  division  into  two  Houses,  one  con- 
sisting of  the  lords  spiritual  and  the  lords  temporal,  the 
other  of  the  knights  of  the  shire  and  burgesses.  In 
the  first  place,  the  mere  fact  of  the  division  of  our 
parliament  into  two  Houses,  neither  more  nor  less,  has 
been  of  infinite  importance  in  our  constitutional  his- 
tory. We  have  escaped  thereby  the  miseries,  which 
the  instability,  the  violence,  and  the  impassioned 
temerity  of  a  single  legislative  assembly,  have  ever 
produced,  when  that  form  of  government  has  been 
attempted,  as  it  often  was  in  the  Italian  Republics  of 
the  middle  ages,  as  it  was  for  a  short  period  in 
Pennsylvania  and  Georgia,  and  as  it  has  been  repeat- 
edly essayed  by  revolutionary  France,  Spain,  Naples, 
and  Portugal,  in  our  own  time.  The  great  political 
writers  of  the  United  States,  Kent,  Story,  and  Lie- 
berjf  have  exhausted  the  arguments  on  this  topic,  and 
have  completely  proved  how  essential  a  guarantee  for 
orderly  and  permanent  liberty  is  "  The  Principle  of 
Two  Houses,"  or  the  "  Bicameral  System,"  as  it  has 
been  phrased  by  Jeremy  Bentham.| 


*  "Hist.  Represent.  Gov.,"  pait  2,  lect.  13. 

f  See,  also,  the  excellent  remarks  of  a  writer  of  our  own  country,  Mr. 
Bowyer,  on  this  suhject,  in  his  recent  very  learned  work,  on  "  Universal 
Public  Law,"  p.  316. 

J  I  gladly  quote  some  of  the  observations  on  this  important  point  which 
Professor  Lieber  makes  at  p.  157  of  his  great  work  on  "  Civil  Liberty 
and  Self-Government :" — u  Practical  knowledge  alone  can  show  the  whole 
advantage  of  this  Anglican  principle,  according  to  which  we  equally  dis- 
card the  idea  of  three  and  four  estates,  and  of  one  House  only.  Both  ar« 


OF   THE   CONSTITUTION.  179 

An  increase  of  the  number  of  Houses  beyond  two, 
gives  no  advantage  which  the  bicameral  plan  does  not 
afford,  and  introduces  irreparable  mischief,  by  the 
complicated  dissensions,  the  vacillations,  and  the 
delays  which  are  inevitable  when  there  are  three  or 
more  legislative  councils.  The  facilities  for  corruption 
and  intimidation  by  the  sovereign  or  his  ministers, 
are  also  fearfully  augmented ;  and  it  becomes  an  easy 
matter  for  an  adroit  and  ambitious  politician  to  gain 
an  ascendancy  in  one  weak  House  out  of  many,  and 
thereby  to  destroy  the  general  free  action  of  the  polit- 
ical body.  It  is  useful  to  compare,  in  this  respect, 
the  primary  institutions  of  our  own  country  with  the 
different  forms  assumed  by  the  national  assemblies  of 
other  European  nations  in  early  times.  For  example, 
we  shall  find  in  mediaeval  Sweden  four  estates  in  four 
Houses  ;  in  mediaeval  Spain  and  France,  three  estates 
in  three  Houses.  And  we  shall  find  that  of  all  the 
early  free  institutions  of  Europe,  our  own  alone  have 
been  permanent.* 

The  division  of  our  parliament  into  two  Houses 
is  foreshadowed  in  the  distinction  drawn  by  John's 
Charter  between  the  great  barons  and  the  inferior 


equally  and  essentially  un- Anglican.  Although,  however,  practice  alone 
can  show  the  whole  advantage  that  may  be  derived  from  the  system  of 
two  Houses,  it  must  he  a  striking  fact  to  every  inquirer  in  distant  coun- 
tries, that  not  only  has  the  system  of  two  Houses  historically  developed 
itself  in  England,  but  it  has  been  adopted  by  the  United  States  in  all  the 
thirty-one  States,  as  well  as  the  six  now  existing  territories,  and  by  all 
the  British  Colonies,  where  local  Legislatures  exist.  We  may  mention 
even  the  African  State  of  Liberia.  The  bicameral  system  accompanies 
the  Anglican  race  like  the  common  law,  while  no  one  attempt  at  intro- 
ducing the  uni-cameral  system  in  larger  countries  has  succeeded.  France, 
Spain,  Naples,  Portugal — in  all  these  countries  it  has  been  tried,  and 
everywhere  it  has  failed.  The  idea  of  one  House  flows  from  that  of  the 
unity  of  power  so  popular  in  France.  The  bicameral  system  is  called,  by 
the  advocates  of  democratic  unity  of  power,  an  aristocratic  institution. 
This  is  an  otter  mistake.  In  reality,  it  is  a  truly  popular  principle  to 
Insist  on  the  protection  of  a  Legislature,  divided  into  two  Houses." 
*  See  Sir  J  Mackintosh's  Memoirs,  vol.  ii.  p.  188. 


180  EISE   AND    PROGRESS 

tenants-ID -chief,  and  the  nature  of  the  division 
took  place,  when  our  parliament  was  fully  constituted 
by  the  addition  of  borough  members,  has  been  most 
momentous  for  the  liberty  of  England.  If  the  repre- 
sentatives of  the  inferior  military  tenants-in-chief 
had  been  admitted  to  the  chamber  of  the  great 
barons,  or  if  they  had  sat  apart  from  the  burgesses, 
the  same  violent  distinctions  of  class  and  caiite  must 
have  grown  up  in  England,  that  have  heen  so  perni- 
cious in  the  continental  kingdoms.  But,  providen- 
tially for  England,  the  knights  of  the  shire  coalesced 
in  parliament  with  the  borough  representatives  ;  and 
though  some  time  elapsed  before  any  certain  system 
was  maintained,  they  became  the  joint  representatives 
of  the  Commons  of  England,  leaving  the  great  barons 
to  form  together  with  the  prelates  a  separate  senate 
and  a  separate  order.  The  benefits  of  this  to  Eng- 
land have  been  incalculable.  She  has  had  the  advan- 
tage of  a  nobility,  and  has  not  been  cursed  with  a 
noblesse.  One  of  the  proud  deficiencies  of  our  lan- 
guage is,  that  the  term  "  roturier "  is  untranslatable 
into  English.  As  Hallam  truly  and  eloquently  re- 
marks, "  from  the  reign  of  Henry  III.  at  least,  the 
legal  equality  of  all  ranks  [of  freemen]  below  the 
peerage  was  to  every  essential  purpose  as  complete 
as  at  present."  *  * 

What  is  most  particular,  is  that  the  peerage  itself 
confers  no  privilege,  except  on  its  actual  possessor. 
The  sons  of  peers,  as  we  well  know,  are  commoners, 
and  totally  destitute  of  any  legal  right  beyond  a 
barren  pre-eminence.  There  is  no  part  of  our  con- 
stitution so  admirable  as  this  equality  of  civil  rights, 
this  isonomia,  which  the  philosophers  of  ancient 
Greece  only  hoped  to  find  in  democratical  govern- 
ment. From  the  beginning  our  law  has  been  no 
respecter  of  persons.  It  screens  not  the  gentleman 
of  ancient  lineage  from  the  judgment  of  an  ordinary 


OF   THE   CONSTITUTION.  181 

jury,  nor  from  ignominious  punishment.  It  confeis 
not,  it  never  did  confer,  those  unjust  immunities  from 
public  burdens  which  the  superior  orders  arrogated  to 
themselves  upon  the  Continent.  Thus,  while  the 
privileges  of  our  peers,  as  hereditary  legislators  of  a 
free  people,  are  "  incomparably  more  valuable  and 
dignified  in  their  nature,  they  are  far  less  invidious  in 
their  exercise  than  those  of  any  other  nobility  in 
Europe.  It  is,  I  am  firmly  persuaded,  to  this  pecu- 
liarly democratical  character  of  the  English  monarchy 
that  we  are  indebted  for  its  long  permanence,  its 
regular  improvement,  and  its  present  vigour.  It  is 
a  singular,  a  providential  circumstance,  that  in  an 
age  when  the  gradual  march  of  civilization  and  com- 
merce was  so  little  foreseen,  our  ancestors,  deviating 
from  the  usages  of  neighbouring  countries,  should,  as 
if  deliberately,  have  guarded  against  that  expansive 
force  which,  in  bursting  through  obstacles  improvi- 
dently  opposed,  has  scattered  havoc  over  Europe."* 

There  is  yet  another  important  characteristic  of 
our  parliament,  which  requires  attention.  Our  nation 
has  had  one  parliament  for  all  England,  and  not  sepa- 
rate legislative  and  taxing  assemblies  for  separate 
counties  or  separate  provinces.  We  have  thus  enjoyed 
the  blessings  of  "  a  national  representative  Govern- 
ment— of  a  representative  system,  comprehending  the 
whole  State,  and  throwing  liberty  over  it  broadcast."f 
Without  this  centralization  of  parliamentary  power, 
our  sovereigns  never  could  have  been  kept  under 
parliamentary  control,  and  within  the  limited  scope  of 
action  which  alone  is  open  to  a  constitutional  king. 
The  remarks  on  this  point,  of  the  noble  and  learned 
author  of  the  "  History  of  England  and  France  under 
the  House  of  Lancaster"  deserve  attention.  Accord- 
ing to  him,  the  great  diversity  in  the  ultimate  result 

*  "  Middle  Ages,"  vol.  ii.  p.  343. 

t  Licber,  "  Civil  Liberty  and  Self  Government,"  p.  137.         • 


182  RISE   AND   PROGRESS 

of  the  English  struggles  for  a  free,  that  is,  a  rational 
and  stable  mixed  constitution,  and  those  of  the 
French  barons  and  towns  during  the  fourteenth  and 
fifteenth  centuries  for  the  same  purpose,  was  caused 
by  England  having  one  central  Government  and  one 
parliament  acting  for  the  whole,  whereas  in  France, 
the  various  great  provinces  of  the  kingdom  (such  as 
Normandy)  had  each  its  provincial  states  in  parlia- 
ment, the  assembling  of  the  States  General  being 
only  occasional.*  Professor  Lieber  similarly  remarks, 
tlat  wherever  popular  bodies,  like  the  estates  of 
mediaeval  France,  have  existed,  no  matter  how  great 
their  privileges  were,  or  how  zealously  they  have  de- 
fended them,  civil  liberty  has  not  been  firmly  estab- 
lished ;  on  the  contrary,  it  has  been  lost  in  the  course 
of  time,  unless  the  estates  have  become  united  in 
some  central  representative  system.  He  also  acutely 
observes,  that  in  our  own  time  we  find  that  those 
Governments,  which  can  no  longer  resist  the  demand 
of  liberty  by  the  people,  yet  are  bent  on  yielding  as 
little  as  possible,  always  have  tried  as  long  as  possible 
to  grant  provincial  estates  only.f 

The  last^  great  principles  of  our  Constitution 
guarantee  the^  security  of  person  and  property  from 
arbitrary  violence,  and  the  due  administration  of 
justice.  They  are  these  three  : 

That  no  man  be  arbitrarily  fined  or  imprisoned, 
that  no  man's  property  or  liberties  be  impaired,  and 
that  no  man  be  in  any  way  punished,  except  after  a 
lawful  trial. 

Trial  by  jury. 

That  justice  shall  not  be  sold  or  delayed. 

This  last  maxim  needs  no  comment.  We  have, 
and  our  ancestors  for  more  than  six  centuries  have 

*  See  the  Lxvth  and  Lxvith  Supplemental  Notes  to  this  excellent 
historical  work, 
f  Pt  137. 


OP   THE   CONSTITUTION.  183 

had,  in  the  words  of  the  Great  Charter,  the  solemn 
declaration  and  covenant  of  the  sovereign — "  We  will 
Bell  to  no  man,  we  will  not  deny  or  delay  to  any  man, 
either  justice  or  right/'  Would  that  we  could  boast 
that  it  had  been  carried  out  in  practice  as  fully  as  it 
has  been  acknowledged  in  theory.  "  The  law's  delay  " 
still,  as  in  Shakspeare's  time,  forms  one  oi'  tne  curses 
of  human  life,  to  an  extent  never  contemplated  at 
Runnymede  ;  and  our  modern  law-reformers  would  do 
well  to  consider  how  far  the  practice  of  making 
suitors  pay  for  judicial  writs,  and  exacting  court-fees 
on  trials,  is  in  accordance  with  the  great  constitu- 
tional canon.  The  security  from  arbitrary  imprison- 
ment, and  the  other  great  constitutional  principle, 
that  of  trial  by  jury,  claim  our  most  earnest  atten- 
tion, both  on  account  of  their  universally  practical 
importance,*  and  by  reason  of  the  tendency  now 
shown  in  many  quarters  to  disparage  and  discard  that 
long-venerated  system  of  trial. 

The  great  words  of  the  Great  Charter — worth  all 
the  classics,  to  Lord  Chatham's  mind — which  have 
protected  for  six  centuries,  and  still  protect  the  per- 
sonal liberty  and  property  of  all  freemen,  have  been 
already  quoted,  but  never  can  be  too  often  repeated. 
"  No  freeman  shall  be  taken,  or  imprisoned,  or  be 
disseised  of  his  freehold,  or  liberties,  or  free  cus- 
toms, or  be  outlawed  or  exiled,  or  any  otherwise  de- 
stroyed ;  nor  will  we  pass  upon  him,  nor  send  upon 
him,  but  by  the  lawful  judgment  of  his  peers,  or  by 


*  See  the  judicious  comments  of  Lieber  ("  Civ.  Lib.  and  Self  Gov.," 
p.  54),  on  the  value  of  a  well-sjuarded  peual  trial  as  an  element  of  con- 
stitutional liberty.  He  cites  and  comments  on  the  dictum  of  Montesquieu, 
that,  "  It  is  upon  the  excellence  of  the  criminal  laws  that  chiefly  the 
liberty  of  the  citizen  depends  "  ("  Esprit  des  Lois,"  xii.  2) :  and  the  words 
with  which  Mittermaier  concludes  his  recent  work  on  the  "  Penal  Pro- 
cess of  England,  Scotland,  and  the  United  States:" — "It  will  be  more 
and  more  acknowledged  how  true  it  is  that  the  penal  legislation  is  the 
Keystone  of  a  nation's  public  law." 


184  EISE   AND   PROGRESS 

the  law  of  the  land.  We  will  sell  to  no  man,  we  will 
not  deny  or  delay  to  any  man,  justice  or  right." 

The  value  of  these  words  of  the  Charter,  as 
constitutional  checks  on  royal  power,  has  been  al- 
ready referred  to.  We  are  now  viewing  them  as 
strictly  applying  to  the  administration  of  justice. 
They  contain  two  great  principles.  First,  that  no 
man  shall  be  imprisoned  on  mere  general  grounds  of 
suspicion,  or  for  an  indefinite  period,  at  the  discretion 
or  caprice  of  the  executive  power  ;  but  that  impris- 
onment shall  be  only  inflicted  as  the  result  of  a  legal 
trial  and  sentence,  or  for  the  purpose  of  keeping  in 
safe  custody,  when  necessary,  an  accused  person  on  a 
definite  charge,  until  he  can  be  tried  on  that  charge. 
Secondly,  they  provide  that,  as  a  general  rule,  every 
person  accused  of  a  criminal  offence  shall  have  the 
question  of  his  guilt  or  innocence  determined  by  a  free 
jury  of  his  fellow-countrymen,  and  not  by  any  nomi- 
nee of  the  Government. 

The  first  of  these  principles  is  familiar  to  us  by 
the  term  of  an  Englishman's  right  to  a  Habeas 
Corpus,  if  his  personal  liberty  be  interfered  witn. 
Some  writers  on  our  constitution  have  erroneously 
supposed  that  this  safeguard  of  freedom  dates  only 
from  the  reign  of  Charles  II.,  when  the  celebrated 
Habeas  Corpus  Act  was  passed.  But  its  true  foun- 
dation is  the  Great  Charter ;  and  from  the  earliest 
times  of  our  law  "  no  freeman  could  be  detained  in 
prison  except  upon  a  criminal  charge,  on  conviction, 
or  for  a  civil  debt.  In  the  former  case  it  was  always 
in  his  power  to  demand  of  the  Court  of  King's  Bench 
a  suit  of  habeas  corpus  ad  subjiciendum  directed  to 
the  person  detaining  him  in  custody,  by  which  he  was 
enjoined  to  bring  up  the  body  of  the  prisoner  with 
the  warrant  of  commitment,  that  the  court  might 
judge  of  its  sufficiency,  and  remand  the  party,  ad- 
mit him  to  bail,  or  discharge  him,  according  to  the 


OF   THE    CONSTITUTION.  185 

nature  of  the  charge.     This  writ  issued  of  right,  and 
could  not  he  refused  by  the  court."  * 

It  is  impossible  to  overvalue  this  great  harrier 
against  tyrannical  power.  Blackstone's  eulogy  on  it, 
and  his  historical  sketch  of  the  Haheas  Corpus  Act,f 

*  Hallam's  "  Constitutional  History,'  vol.  i.  p.  16. 

An  imprisonment  must  either  be  by  process  "  from  a  court  of  judica- 
ture, or  by  warrant  from  some  legal  officer  having  authority  to  commit 
to  prison  :  which  warrant  must  be  under  the  hand  and  seal  of  the  magis- 
trate, and  express  the  cause  of  the  commitment,  in  order  to  be  examined 
into,  if  necessary,  upon  a  Habeas  Corpus."  "  The  gaoler  is  not  bound  to 
detain  the  prisoner,  if  there  be  no  cause  of  committal  expressed  iu  the 
warrant.  And  Sir  Edward  Coke  observes  that  the  law  judges  in  this 
respect  like  Festus  the  Roman  Governor, — that  it  is  unreasonable  to 
send  a  prisoner,  and  not  to  signify  the  crimes  alleged  against  him." — 
Bowyer's  Commentaries  on  the  Const.  Law,  p.  425.  Coke's  2nd  Inst.,  52,  53. 

f  "  The  language  of  the  Great  Charter  is,  that  no  freeman  shall  bo 
taken  or  imprisoned  but  by  the  lawful  judgment  of  his  equals,  or  by  the 
law  of  the  land.  And  many  subsequent  old  statutes  expressly  direct 
that  no  man  shall  be  thken  or  imprisonad  by  suggestion  or  petition  to  the 
king  or  his  council,  unless  it  be  by  legal  indictment,  or  the  process  of  the 
common  law.  By  the  petition  of  Right,  3  Car.  II.,  it  is  enacted  that  no 
freeman  shall  be  imprisoned  or  detained  without  cause  shown,  to  which 
he  may  make  answer  according  to  law.  By  16  Car.  I.  c.  x.,  if  any  per- 
son be  restrained  of  his  liberty  by  order  or  decree  of  any  illegal  court,  or 
by  command  of  the  king's  majesty  in  person,  or  by  warrant  of  the 
council-board,  or  of  any  of  the  privy  council,  he  shall,  upon  demand  of 
his  council,  have  a  writ  of  habeas  corpus,  to  bring  his  body  before  the 
Court  of  King's  Bench  or  Common  Pleas :  who  shall  determine  whether 
the  cause  of  his  commitment  be  just,  and  thereupon  do  as  to  justice  shall 
appertain.  And  by  31  Car.  II.  c.  ii.,  commonly  called  the  Habeas  Corpus 
Act,  the  methods  of  obtaining  this  writ  are  so  plainly  pointed  out  and 
enforced,  that  so  long  as  this  statute  remains  unimpeached,  no  subject  of 
England  can  be  long  detained  in  prison,  except  in  those  cases  in  which 
the  law  justifies  and  requires  such  detainer.  And  lest  this  Act  should  be 
evaded  by  demanding  unreasonable  bail  or  sureties  for  the  prisoner's  ap- 
pearance, it  is  declared,  by  1  Wm.  and  M.  stat.  2,  c.  ii.,  that  excessive 
bail  ought  not  to  be  required.  Of  great  importance  to  the  public  is  the 
preservation  of  this  personal  liberty  :  for  if  once  it  were  left  in  the  power 
of  any,  the  highest,  magistrate  to  imprison  arbitrarily  whomever  he  or 
his  officers  thought  proper,  as  in  France  it  is  daily  practised  by  the  Crown, 
there  would  soon  be  an  end  of  all  other  rights  and  immunities.  Some 
have  thought,  that  unjust  attacks,  even  upon  life  or  property,  at  the  ar- 
bitrary will  of  the  magistrate,  are  less  dangerous  to  the  commonwealth 
than  such  as  are  made  upon  the  personal  liberty  of  the  subject.  To  be- 
reave a  man  of  life,  or  by  violence  to  confiscate  his  estate,  without  accu- 
sation or  trial,  would  be  so  gross  and  notorious  an  act  of  despotism,  01 


186  RISE   AND   PROGRESS 

deserve  the  earnest  attention  of  every  student  of  on: 
constitution.  And  if  we  would  satisfy  ourselves  by 
recent  practical  proofs  of  the  fearful  sufferings  which 
a  nation  may  undergo,  when  its  rulers  have  power  to 
arrest  and  imprison  without  trial,  upon  mere  suspi- 
cion, we  may  usefully  refer  to  Mr.  Gladstone's  narra- 
tive of  the  scenes  which*  he  witnessed  in  the  Neapoli- 
tan prisons  in  1849.  If  any  one  should  suppose  that 
such  atrocities  can  exist  only  under  unlimited  mon- 
archies, he  may  clear  himself  of  that  error  by  turning 
to  the  celebrated  letters  of  the  Vieux  Cordelier,  of 
Camille  Desmoulins,  in  which  that  remorseful  dema- 
gogue described  the  horrors  that  were  caused  in 
republican  France  during  the  first  revolution,  by 
making  men's  liberty  or  captivity  dependent  upon 
mere  general  suspicion. 

We  come  now  to  the  second  great  judicial  princi- 
ple contained  in  the  clause  of  Magna  Carta,  which 
provides  that  a  freeman  is  to  have  a  free  trial ;  that 
he  is  to  suffer  nought  unless  by  the  lawful  judgment 
of  his  peers,  or  by  the  law  of  the  land :  in  other 


must  at  once  convey  the  alarm  of  tyranny  throughout  the  whole  king- 
dom :  but  confinement  of  the  person,  by  secretly  hurrying  him  to  gaol, 
where  his  sufferings  are  unknown  or  forgotten,  is  a  less  public,  a  less 
striking,  and  therefore  a  more  dangerous  engine  of  arbitrary  government. 
And  yet  sometimes,  when  the  State  is  in  real  danger,  even  this  may  be 
a  necessary  measure.  But  the  happiness  of  our  constitution  is,  that  it  is 
not  left  to  the  executive  power  to  determine  when  the  danger  of  the  State 
is  so  great,  as  to  render  this  measure  expedient :  for  it  is  the  parliament 
only,  or  legislative  power,  that,  whenever  it  sees  proper,  can  authorise 
Ihe  Crown,  by  suspending  the  Habeas  Corpus  Act  for  a  short  and  limited 
time,  to  imprison  suspected  persons  without  giving  any  reason  for  so 
doing ;  as  the  senate  of  Home  was  wont  to  have  recourse  to  a  dictator,  a 
magistrate  of  absolute  authority,  when  they  judged  the  republic  in  any 
imminent  danger.  The  decree  of  the  senate,  which  usually  preceded  the 
nomination  of  this  magistrate,  "  dent  operam  consules,  ne  quid  rfspublica 
detmmenti  capiat"  was  called  the  senatus-consnllum  ultimas  necessitaiis.  Iu 
like  manner  this  expedient  ought  only  to  be  tried  in  cases  of  extreme 
emergency ;  and  in  these  the  nation  parts  with  its  liberty  for  a  while,  in 
order  to  preserve  it  for  ever;" — Commentaries,  vol.  i.  p.  146. 


OF    THE   CONSTITUTION.  187 

Words,  the  principle  of  an  Englishman's  right .to  trial 
by  jury. 

The  words  of  the  Great  Charter,  Legale  Judi<- 
cium  parium  suorum,  "  the  lawful  judgment  of  a 
mun's  peers,"  have  for  centuries  been  familiar  to  the 
nation  as  household  words,  and  have  been  understood 
by  Blackstone  and  most  other  commentators  on  our 
laws  and  institutions  as  referring  to  trial  by  jury. 
Some  few  writers,  however,  whose  station  and  learning 
entitle  them  to  attention,  have  treated  this  supposition 
as  a  mere  vulgar  error  ;  and  deny  that  the  judicium 
parium  has  any  reference  whatever  to  trial  by  jury. 
The  subject  well  deserves  investigation  ;  as  it  certain- 
ly involves  not  a  mere  point  of  legal  archseology,  but 
a  constitutional  question  of  the  most  solemn  character. 

Did  trial  by  jury  exist  in  England  in  John's 
time  ?  and,  if  so,  did  the  framers  of  the  Great  Char- 
ter mean  trial  by  jury,  when  they  spoke  of  the  lawful 
judgment  of  a  man's  peers  ?  These  are  the  points 
on  which  an  answer  is  to  be  given,  and  I  believe  that 
on  each  point  the  answer  should  be  in  the  affirmative. 

Before  investigating  the  existence  of  trial  by  jury 
in  the  thirteenth  century,  we  should  be  precise  as  to 
what  we  understand  by  the  term.  Some  persons, 
when  they  speak  of  trial  by  jury,  whatever  be  the 
period  of  our  history  that  is  referred  to,  are  always 
thinking  of  a  trial  by  jury,  in  all  particulars  resem- 
bling that  which  is  now  in  actual  practice  in  our 
courts.  In  a  modern  trial  by  jury  we  see  a  trial  by 
twelve  men,  fairly  taken  from  the  general  body  of 
private  citizens,  with  hardly  any  possibility  of  its 
being  known  beforehand  who  they  will  be,  who  are 
Bworn  to  give  a  true  verdict  on  a  distinct  question  of 
fact  before  them  ;  who  act  under  the  presidency  of  a 
professional  judge,  from  whom  they  take  directions  in 
matters  of  law,  and  who  must  act  according  to  their 
findings  on  matters  of  fact.  All  these  are  ancient 


188  RISE   AND   PROGRESS 

characteristics  of  the  institution  ;  but  there  is  also 
this  other  ingredient  of  modern  jury  trial,  with  which 
we  are  all  practically  familiar — that  the  juries  give 
their  verdict,  not  according  to  their  own  knowledge  of 
the  transaction,  but  according  to  the  evidence  which 
others  lay  before  them.  They  act  not  as  witnesses. 
but  as  critics  of  witnesses  ;  as  weighers,  not  as  givers 
of  proofs.  Now,  if  we  are  to  consider  this  last  quality 
of  a  modern  trial  by  jury  to  be  necessarily  involved 
in  the  term,  we  undoubtedly  shall  not  find  the  trial 
by  jury  such  as  we  seek,  in  John's  time,  nor  shall  we 
discover  it  for  two  centuries  after  his  reign.  If,  on 
the  other  hand,  when  we  speak  of  trial  by  jury  as  a 
safeguard  of  English  liberty,  we  mean  no  more  than 
the  general  principle,  that  the  question  of  a  man's 
guilt  or  innocence  of  a  criminal  charge  is  to  be  deter- 
mined by  a  free  and  independent  body  of  his  fellow- 
citizens,  and  not  by  officers  of  the  executive  authori- 
ty ;  we  shall  find  that  pimciple  flourishing  in  the  very 
earliest  periods  of  our  national  existence  ;  and  we 
shall  find  it  still  earlier  in  the  tribunals  of  the  Ger- 
mans, the  Danes,  and  the  Normans,  that  is  to  say, 
among  three  of  the  four  elements  of  our  race. 

Something,  however,  more  definite  than  this  is 
fairly  meant  when  trial  by  jury  is  spoken  of.  On  the 
contrary,  the  first-mentioned  idea  of  the  essentials  of 
trial  by  jury  involves  too  much.  Perhaps  we  may 
bust  express  the  fair  signification  of  the  phrase,  by 
saying  that  when  we  speak  of  trial  by  jury,  we  mean 
a  system  whereby  the  judges,  or  public  officers,  who 
compose  the  court,  and  who  are  commissioned  by  the 
sovereign  to  administer  the  law,  to  put  accused  per- 
sons upon  trial,  to  discharge  them  if  innocent,  and  to 
pass  sentence  upon  them  if  guilty,  are  not  allowed  to 
determine  for  themselves  the  question  whether  an 
accused  person  be  innocent  or  guilty,  but  are  required 
to  be  guided  on  this  point  by  the  opinion  of  a  body 


OF   THE  CONSTITUTION.  189 

of  private  individuals  (usually  twelve  in  number), 
fairly  taken  from  among  those  who,  in  the  eye  of  the 
law,  are  equals  with  the  accused  person,  summoned  to 
give,  upon  oath  (Jurati),  a  True  Saying  (Veredic- 
tuni)  to  the  court,  as  to  whether  the  party  accused  be 
guilty  or  not  guilty ;  by  means  of  which  true  saying 
the  court  may  be  enabled  to  pronounce  a  right  judg- 
ment. We  can  readily  understand,  that  in  early 
times  the  simplest  and  shortest  plan  was  followed,  of 
summoning,  as  jurors,  twelve  men  from  the  immedi- 
ate neighbourhood,  where  the  imputed  crime  was  said 
to  have  been  committed,  who  were  to  give  the  court  a 
True  Saying  about  it  from  their  own  knowledge.  The' 
well-working  of  this  plan  must  have  been  greatly  aid- 
ed by  the  law  of  frankpledge,*  which  was,  in  those 
times,  carried  out  in  full  practice,  and  which  must 
have  compelled  the  men  of  each  neighbourhood  to 
keep  watch  upon  the  conduct  of  each  other.  When 
the  system  of  frankpledge  became  obsolete,  when  pop- 
ulation increased,  and  the  facilities  of  moving  from 
place  to  place  became  greater,  the  personal  knowledge 
which  the  twelve  men  from  the  neighbourhood  would 
have  respecting  an  imputed  crime,  must  have  become 
less  full  and  less  accurate.  The  custom,  then,  would 
naturally  grow  up  of  their  hearing  the  ejddence  of 
others  who  happened  to  have  actually  seen~tne  trans- 
action  in  question,  or  who  could  testify,  of  their  own 
knowledge,  to  any  material  fact,  whence  inferences  of 
guilt  or  innocence  might  be  drawn.  The  production 
before  the  jurors  of  documentary  proof  (where  any 
existed)  would  be  a  still  more  natural  step.  The  ju- 
rors would  weigh  the  value  of  all  this  in  giving  their 
verdict,  and  thus,  from  being  witnesses  themselves, 
they  would  gradually  become  what  they  now  are,  the 
hearers  of  witnesses,  and  the  deciders  upon  proof  sup- 

*  See  supra,  p.  45. 


190  RISE   AND   PBOGRESS 

plied  by  others.  We  see,  however,  that  this  last 
characteristic  of  modern  trial  by  jury  would  be  slowly 
nnd  gradually  established  ;  and  it  need  not  be  sought 
for  as  an  essential  part  of  trial  by  jury  in  its  original 
existence. 

Keeping  in  mind  the  third  and  last  definition  of 
trial  by  jury  which  we  have  been  considering,  both 
with  respect  to  what  the  term  necessarily  implies,  and 
what  it  does  not  necessarily  imply,  we  may  proceed  to 
investigate  its  origin,  and  the  recognition  and  sanction 
which  it  received  from  the  Great  Charter. 

For  the  sake  of  brevity  and  clearness,  I  deal  here 
almost  solely  with  trial  by  jury  in  criminal  cases. 
But  it  will  be  easily  understood  how  the  same  mode 
of  trying  questions  of  fact  would  be  practised  in  civil 
cases.  1  also  limit  the  inquiry  to  the  subject  of  the 
actual  trial  of  guilt  or  innocence  before  the  jury  of 
twelve  (which  we  now  call  the  petty  jury)  ;  that  is  to 
say,  before  the  jury  who  give  the  verdict.  The  sub 
ject  of  the  preliminary  inquiry  by  the  grand  jury, 
who,  in  the  name  of  the  sovereign,  make  presentment 
to  the  court  of  the  charge,  is  one  of  minor,  though  of 
considerable,  importance,  and  can  only  be  incidental- 
ly mentioned  here. 

Some  writers  have  assigned  to  trial  by  jury  a  very 
specific  and  a  very  illustrious  parentage.  They  have 
represented  it  as  an  institution  established  by  tho 
great  Alfred,  and  as  the  peculiar  gem  of  Anglo-Saxon 
freedom,  which  Norman  tyranny  could  not  destroy  or 
dim.  Others  assign  to  it  a  still  more  remote  and  very 
general  antiquity.  They  trace  it  in  the  ancient  tribu- 
nals so  generally  prevalent  among  the  Teutonic  na- 
tions of  the  Continent,  and  also  among  the  Scandina- 
vian ;  in  which  "  a  select  number  of  persons,  often 
twelve,  were  taken  from  the  community  and  appointed 
to  try  causes,  but  who  did  so  in  the  capacity  of 
judges/'  as  well  as  in  the  capacity  which  we  understand 


OF   THE   CONSTITUTION.  191 

as  the  peculiar  province  of  jurors,  and  "  who,  when 
satisfied  as  to  the  evidence,  awarded,  and  pronounced 
the  doom."*  Such  were  the  Norwegian  Laugretto- 
men,  the  Swedish  Nambd,  the  Danish  Ncevn,  the 
Jutish  Sandemoend,  the  Germanic  Scabini,  and  others. 
But,  as  Mr.  Forsyth,  in  his  excellent  "  History  of  Trial 
by  Jury,"  has  pointed  out,  the  difference  between  all 
these  tribunals  and  the  English  juries,  is  vital  and 
essential.  It  is  in  England,  and  in  England  alone 
(unless  Normandy  should  be  added),  that  we  find 
juries  quite  distinct  from  the  judges  who  compose  the 
court  ; — juries  who  are  summoned  for  the  sole  purpose 
of  giving  a  True  Saying  on  a  question  of  fact,  and 
who  have  nothing  to  do  with  the  sentence  of  the  court 
which  follows  the  delivery  of  their  verdict.  The  same 
writer  has  well  observed  that  it  is  to  this  peculiar 
characteristic  of  the  English  jury  that  we  owe  the 
preservation  of  jury  trial  in  this  country,  while  the 
ancient  popular  tribunals  of  Germany,  France,  and 
Scandinavia  have  perished. 

"  A  court  of  justice  where  the  whole  judicial  au- 
thority is  vested  in  persons  taken  from  time  to  time 
from  amongst  the  people  at  large,  with  no  other  qual- 
ification required  than  that  of  good  character,  can 
only  be  tolerated  in  a  state  of  society  of  the  most 
simple  kind.  As  the  affairs  of  civil  life  become  more 
complicated,  and  laws  more  intricate  and  multiplied, 
it  is  plainly  impossible  that  such  persons,  by  whatever 
name  they  are  called,  whether  judges  or  jurors,  can 
be  competent  to  deal  with  legal  questions.  The  law 
becomes  a  science  which  requires  laborious  study  to 
comprehend  it ;  and  without  a  body  of  men  trained 

*  Forsyth's  "  History  of  Trial  by  Jury."  See  chapters  2  and  3. 
Though  differing  from  some  of  the  doctrines  advocated  in  this  work,  I 
bear  willing  testimony  to  the  high  merit  which  it  displays,  and  gladly 
acknowledge  my  obligations  to  it  for  information  on  many  important  sub« 
jects. 


192  BISE   AND   PROGRESS 

to  the  task,  and  capable  of  applying  it,  tho  rights  of 
all  would  be  set  afloat — tossed  on  a  wide  sea  of  arbi- 
trary, fluctuating,  and  contradictory  decisions. — Hence 
in  all  such  popular  courts  as  we  are  describing,  it  has 
been  found  necessary  to  appoint  jurisconsults  to  assist 
with  their  advice,  in  matters  of  law,  the  unmstructed 
judges.  These  at  first  acted  only  as  assessors,  but 
gradually  attracted  to  themselves  and  monopolized 
the  whole  judicial  functions  of  the  court.  There 
being  no  machinery  for  keeping  separate  questions  of 
law  from  questions  of  fact,  the  lay  members  felt 
themselves  more  and  more  inadequate  to  adjudge  the 
causes  that  came  before  them.  They  were  obliged 
perpetually  to  refer  to  the  legal  functionary  who  pre- 
sided, and  the  more  his  authority  was  enhanced,  the 
more  the  power  of  the  other  members  of  the  court 
was  weakened,  and  their  importance  lessened,  until 
it  was  seen  that  their  attendance  might,  without  sen- 
sible inconvenience,  be  dispensed  with  altogether. 
And  of  course  this  change  was  favoured  by  the  Crown, 
as  it  thereby  gained  the  important  object  of  being 
able,  by  means  of  creatures  of  its  own,  to  dispose  of 
the  lives  and  liberties  of  its  subjects  under  the  guise 
of  legal  forms.  Hence  arose  in  Europe,  upon  the 
ruins  of  the  old  popular  tribunals,  the  system  of  single 
judges  appointed  by  the  king  and  deciding  all  mat- 
ters of  fact  and  law,  and  it  brought  with  it  its  odious 
train  of  secret  process  and  inquisitorial  examinations. 
But  the  result  was  inevitable.  The  ancient  courts  of 
Scandinavia  and  Germany  carried  in  their  very  consti- 
tution the  element  of  their  own  destruction,  and  this 
consisted  in  the  fact  that  the  whole  judicial  power 
was  in  the  hands  of  persons  who  had  no  special  qual- 
ifications for  their  office. 

"Far  otherwise  has  been  the  case  in  England. 
Here  the  jury  never  usurped  the  functions  of  the 
judge.  They  were  originally  called  in  to  aid  the 


OF   THE    CONSTITUTION.  193 

court  with  information  upon  questions  of  fact,  in 
Drder  that  the  law  might  be  properly  applied  ;  and 
this  has  continued  to  be  their  province  to  the  present 
day.  The  utility  of  such  an  office  is  felt  in  the  most 
refined  as  well  as  in  the  simplest  state  of  jurispru- 
dence. Twelve  men  of  average  understanding  are  at 
least  as  competent  now  as  they  were  in  the  days  of 
Henry  II.  to  determine  whether  there  is  sufficient 
evidence  to  satisfy  them,  that  a  murder  has  been 
committed,  and  that  the  party  charged  with  the  crime 
is  guilty.  The  increased  technicality  of  the  law  does 
not  affect  their  fitness  to  decide  on  the  effect  of  proofs. 
Hence  it  is  that  the  English  jury  flourishes  still  in  all 
its  pristine  vigour,  while  what  are  improperly  called 
the  old  juries  of  the  Continent  have  either  sunk  into 
decay  or  been  totally  abolished."* 

It  is  to  be  hoped  that  few  educated  men  of  the 
present  day  believe  in  the  myth  of  trial  by  jury  hav- 
ing been  invented  by  Alfred.  But  some  attention  to 
the  Anglo-Saxon  criminal  system  is  necessary  in  order 
to  understand  the  rise  and  growth  of  trial  by  jury 
in  England.  The  Anglo-Saxon  system  of  criminal 
judicature  had  certainly  the  great  principle  of  trying 
men  publicly  before  a  popular  tribunal,  and  not  per- 
mitting their  fate  to  be  dependent  on  the  subserviency 
or  caprice  of  any  officer  of  the  Crown.  This  princi- 
ple is  also  an  essential  attribute  of  trial  by  jury,  and 
the  introduction  of  that  system  was  without  doubt 
facilitated  by  its  being  thus  congenial  to  the  old  feel- 
ings and  customs  of  the  mass  of  the  population. 
But  according  to  the  definition  which  has  been  above 
considered  and  adopted,  much  more  is  involved  in  the 
idea  of  trial  by  jury,  which  we  shall  vainly  look  for  in 
Anglo-Saxon  times.  An  Anglo-Saxon  criminal  trial 
did  not  take  place  before  judges  who  summoned,  as 

*  Forsytn,  p.  9. 

9 


194  RISE    AND    PROGRESS 

their  informants  on  matters  of  fact,  twelve  sworn 
men,  or  any  other  definite  number  ;  hut  it  took  place 
in  presence  of  all  the  assembled  members  of  the  hun- 
dred or  the  county  court,  the  latter  being  the  tribunal 
before  which  most  criminal  charges  were  determined. 
All  the  land  owners  of  the  county,  under  the  presi- 
dency of  the  sheriff  and  bishop,  formed  this  court. 
They  were  its  "  Sectatores,"  or  suitors.  They  all  took 
part,  or  had  a  right  to  take  part,  in  a  criminal  trial, 
and  they  all  looked  on  to  see  whether  the  stipulated 
proof  of  guilt  or  innocence  was  given.  I  say  they 
looked  on,  for  that  term  implies  more  accurately  the 
functions  of  the  county-court  suitors  in  a  Saxon  crim- 
inal trial,  than  any  word  which  involves  the  idea  of 
giving  and  comparing  testimony,  or  of  arguing  from 
apparent  fact  to  inferential  fact.  This  arose  from  the 
system  of  the  Saxon  jurisprudence  making  a  trial,  as 
Palgrave  truly  remarks,*  "rather  of  the  nature  of 
an  arithmetical  calculation,  or  a  chemical  experiment, 
than  what  we  now  understand  by  the  trial  of  a  cause. 
A  certain  form  was  gone  through,  and  according  to  its 
result,  which  was  always  palpable  and  decisive  one 
way  or  the  other,  the  accused  person  was  found  guilty 
or  acquitted."  This  is  in  no  degree  an  exaggerated 
account  of  the  Anglo-Saxon  system  of  trying  offend- 
ers, either  by  the  production  of  compurgators,  or  by 
the  ordeal.  In  the  first  of  these  modes,  the  accused 
party  was  required  to  produce  neighbours  to  swear  to 
their  belief  in  his  innocence  ;  and  the  effect  of  such 
neighbours'  oaths  was  estimated  not  by  the  means  of 
knowledge  possessed  by  the  deponents,  or  by  their 
characters,  or  even  by  their  number,  but  by  their 
"  worth  "  in  the  Anglo-Saxon  scale  of  persons ;  accord- 
ing to  which  an  eorl's  oath  was  equal  to  the  oatlis  of 
six  ceorls,  and  so  on.  If  the  accused  party  produced 

*  See  Palgrave  s  "  History  of  the  English  Commonwealth." 


OF    THE   CONSTITUTION.  195 

the  requisite  amount  of  oath  (which  was  in  every  case 
rigorously  defined  by  a  curiously-minute  penal  tariff), 
he  was  set  free.  If  the  aggregate  value  of  the  oaths 
of  his  compurgators  fell  below  the  prescribed  sum,  he 
was  pronounced  guilty.  If  the  accused  person  put 
himself  upon  the  trial  by  ordeal,  the  weight  of  the 
hot  iron  which  he  was  to  bear,  or  the  depth  to  which 
he  was  to  plunge  his  arm  into  the  hot  water,  was 
scrupulously  preappointed  by  the  law.  The  assembly 
looked  on.  In  trial  by  compurgation,  they  added  up 
the  amount  of  the  oaths  ;  in  trial  by  ordeal,  they 
watched  the  effect  of  the  hot  iron  or  hot  water  upon 
the  culprit's  skin,  and  that  was  all  which  they  had  to 
do.* 

It  has  already  been  shown  that  the  Danish  Naev- 
ninger  cannot  be  regarded  as  juries.  We  cannot  look 
on  either  our  Germanic  or  our  Scandinavian  ancestors 
as  the  founders  of  that  mode  of  trial.  How,  then, 
did  trial  by  jury  arise  in  this  country  ?  There  are 
two  remaining  theories,  from  one  of  which  this  ques- 
tion must  be  answered.  According  to  one  of  these 
opinions,  we  are  chiefly  indebted  for  trial  by  jury  to 
our  Norman  ancestors,  who  are  supposed  to  have 
brought  it  hither  from  Normandy,  where  it  had  exist- 
ed before  the  Conquest.  This  is  the  view  of  Reeves 
and  of  Serjeant  Stephens,  and  was  apparently  taken 
by  Sir  Francis  Palgrave  when  he  wrote  his  "  Rise  and 
Progress  of  the  English  Commonwealth,"  though  in 
his  more  recent  "  History  of  Normandy  and  England " 
he  seems  to  have  changed  his  judgment.  Other 


*  See  Palgrave,  vt  supra.  It  must  not,  however,  be  supposed  that,  in 
cases  of  flagrant  guilt,  the  offender  was  allowed  the  chance  of  escaping 
through  the  perjury  of  compurgators,  or  the  jugglery  which  was  frequent 
in  the  ordeal.  On  the  contrary,  the  slayer  who  was  found  near  the  hleed- 
ing  corpse,  or  the  thief  who  was  taken  on  fresh  pursuit  in  pt  ssessiou  of 
the  booty,  hand  habend  and  back-barend,  was  strung  up  to  the  nearest  bough 
without  ceremony. 


196  RISE   AND   PROGRESS 

writers,  of  very  high  eminence,  consider  that  trial  by 
jury  first  grew  up  in  Anglo-Norman  England,  and 
that  it  was  introduced  into  Normandy  itself  from 
England,  while  our  kings  were  still  dukes  of  that 
country.  Those  who  hold  this  theory  consider  Henry 
II.  and  his  justiciars  as  the  founders  of  trial  by  jury, 
or  rather  as  the  first  developers  of  jury  trial  out  of 
the  different  processes  and  judicial  customs  which 
various  races  and  rulers  had  imported  into  this  island, 
or  had  created  here.  The  choice  between  these  two 
theories  depends  mainly  on  the  opinion  which  we 
form  respecting  an  old  treatise  called  the  "  Grand 
Constumier,"  in  which  the  laws  and  judicial  usages 
of  Normandy  are  minutely  described.  It  is  generally 
agreed,  that  the  "  Grand  Cnnstrimier "  was  written 
before  the  separation  of  the  Duchy  from  the  English 
Crown,  which  we  know  to  have  been  effected  in 
John's  time  ;  but  it  is  suggested  that  it  may  have 
been  written  after  Henry  II/s  time,  and  may  only 
describe  usages  which  had  originated  in  England,  and 
had  been  introduced  from  our  courts  into  the  Nor- 
man courts.  But  this  is  a  mere  hypothesis,  without 
any  evidence  to  uphold  it ;  and  it  seems  more  reasona- 
ble to  regard  the  law  and  customs  described  in  the 
"  Grand  Constumier "  as  genuine  primitive  Norman, 
than  as  English  importations.  But  I  may  remark, 
that  even  if  we  adopt  the  other  view,  and  consider 
those  Norman  institutions  as  of  English  origin,  it  will 
only  make  us  regard  trial  by  jury  as  more  exclusively 
and  purely  an  English  national  institution.  In  Nor- 
mandy (besides  trial  by  battle,  in  which  the  accused 
and  the  accuser,  or  in  some  few  cases  their  champions, 
settled  their  differences  in  mortal  combat)  criminal 
charges  were  tried  as  follows  : — An  inquest  of  twenty- 
four  "good  and  lawful  men"  was  summoned  from 
the  neighbourhood  where  the  murder  or  the  theft  had 
been  committed.  These  were  the  a  Jurati "  or  "  Ju- 


OF   THE   CONSTITUTION.  197 

ratores,"  so  called  from  the  oath  they  took  to  speak 
the  truth.  The  officer  is  directed  by  the  Norman  law 
to  select  "  those  who  are  believed  to  be  best  informed 
of  the  truth  of  the  matter,  and  how  it  happened." 
None  were  to  be  adduced  who  were  known  friends  or 
declared  enemies  of  either  party.  Before  the  culprit 
was  put  upon  his  trial,  a  preliminary  inquest  was 
taken  by  four  knights,  who  were  questioned  concern- 
ing their  belief  of  his  guilt ;  and  in  their  presence  the 
officer  afterwards  interrogated  the  twenty-four  jurors, 
not  in  one  body,  but  separately  from  each  other. 
They  were  then  assembled  and  confronted  with  the 
culprit,  who  could  challenge  any  one  for  lawful  cause, 
and  if  the  challenge  was  allowed,  the  testimony  of 
that  juror  was  rejected.  The  presiding  officer  or 
judge,  then  "  recorded  "  the  verdict  of  the  jurors,  in 
which  twenty  at  least  were  required  to  concur. 

The  introduction  into  England  of  this  jury  trial, 
as  well  as  of  the  trial  by  battle,  was  naturally 
favoured  by  the  Norman  judges  who  presided  over  the 
royal  courts  after  the  Conquest ;  and  the  king's 
itinerant  courts,  in  which  there  was  no  assemblage  of 
local  members,  soon  assumed  the  functions  of  trying 
many  of  the  cases  which  had  previously  been  tried  at 
the  county  courts.  In  all  these  courts,  in  the  old 
Aula  Kegia,  in  the  King's  Bench,  which  sprung  from 
it,  and  in  the  courts  of  the  Justices  in  Eyre,  the 
judges  formed  the  court.  They  delivered  judgment  ; 
they  caused  justice  to  be  executed.  But  they  did  not 
themselves  determine  on  the  question  of  fact  as  to 
guilt  or  innocence.  For  the  answer  to  that  question 
the  court  looked  to  the  event  of  the  ordeal,  or  appeal 
of  battle,  or  to  the  true  saying  of  twelve  sworn  men 
summoned  from  the  immediate  neighbourhood.  This 
was  the  original  trial  by  jury,  which  by  degrees  super- 
seded the  other  modes  of  trial.  The  Normans  gen- 
erally abolished  trial  by  compurgators  in  criminal 


198  EISE   AND   PKOGKESS 

cases  ;  and  though  the  trial  hy  ordeal  long  continued 
in  force,  men  at  length  began  to  regard  it  in  its  true 
light,  as  an  impious  absurdity,  and  a  not  unfrequent 
engine  of  fraud.  Henry  II.,  by  the  laws  in  which  he 
instituted  the  trial  by  twelve  sworn  knights,  in  certain 
civil  causes,  where  real  property  was  the  subject  of 
dispute,  familiarized  men's  minds  more  and  more  with 
the  theory  and  practice  of  jury  trial ;  and  the  more 
it  was  known,  the  more  it  was  valued.  Kepeated 
instances  can  be  traced,  in  the  reigns  of  his  sons,  of 
accused  persons  being  tried  by  juries  on  criminal 
charges,  for  which  mode  of  trial  they  paid  a  sum  of 
money  to  the  king,  evidently  regarding  it  as  a  valuable 
privilege.  At  length,  in  the  year  1215,  the  year  of 
the  grant  of  Magna  Carta,  the  Council  of  Lateran 
prohibited  throughout  Christendom  the  further  con- 
tinuance of  trial  by  ordeal ;  and  the  adoption  of  trial 
by  jury  became  unavoidably  general  in  England,  in 
order  to  dispose  of  the  numerous  class  of  cases,  where 
the  charge  was  preferred,  not  by  an  injured  individual 
against  the  culprit  in  the  form  of  an  appeal,  but  by 
the  great  inquest  of  the  county  (our  modern  grand 
jury)  in  the  form  of  a  presentment.  For,  it  was  only 
where  there  was  an  accusing  appellant,  that  the  trial 
by  battle  was  possible.  Still,  there  was  for  a  long 
time  no  mode  of  compelling  a  prisoner  to  put  himself 
on  the  country,  i.  e.  to  commit  the  question  of  his 
guilt  or  innocence  to  twelve  sworn  men,  summoned 
from  the  neighbourhood.  TVhvajd  T.'a  Iaw3  inflicting 
the  "  Peine  forte  et  dure"  on  prisoners  who  refused 
to  plead,  was  passed  to  obviate  this  difficulty ;  which 
was  not,  however,  completely  got  rid  of  till  the  reign 
of  George  III. 

Trial  by  jury  was  originally,  both  in  Normandy 
and  here,  an  appeal  to  the  knowledge  of  the  country. 
The  jury  were  selected  so  as  to  insure  the  attendance 
of  those  who  knew  most  of  the  transaction.  They 


OF    THE    CONSTITUTION.  199 

gave  a  verdict  from  their  own  knowledge  of  the  case, 
and  not  from  hearing  the  testimony  of  others.  Grad- 
ually, however,  a  change  took  place  in  this  respect. 
At  first  documentary  evidence,  such  as  deeds,  char- 
ters, &c.,  throwing  light  on  the  matter  in  dispute, 
were  permitted  to  be  laid  before  the  jurors.  Tho 
next  improvement  was  to  introduce  the  viva  voce 
testimony  of  persons,  other  than  the  jurors,  who 
could  give  any  information  as  to  the  true  circum- 
stances of  the  case.  This  was  certainly  effected  by 
the  time  of  Henry  YL.  as  appears  by  the  treatise  of 
Henry's  Chancellor,  Fortescue,  "  De  Laudibus  Legum 
Anglise,"  in  which  trial  by  jury  is  boasted  of  as  the 
peculiar  glory  of  the  English  law,  and  the  whole 
procedure  is  minutely  described.  The  production  of 
witnesses  who  give  evidence  on  oath  before  the  jury  is 
there  specially  mentioned.  But  the  jurors  were  still, 
in  Fortescue's  time,  summoned  from  the  neighbour- 
hood, and  were  not  only  allowed,  but  required,  to  act 
upon  such  knowledge  of  the  facts  as  they  themselves 
possessed.  The  complete  change  in  respect  to  the 
modern  system,  whereby  jurors  are  summoned,  not 
from  the  immediate  neighbourhood,  but  generally  from 
the  whole  county,  and  are  bound  to  decide  only 
according  to  the  evidence  laid  before  them,  was  not 
effected  for  some  centuries  later.* 

We  now  return  to  the  words  of  Magna  Carta, 
which  forbid  a  freeman  to  suffer  "  except  by  the  law- 
ful  judgment  of  his  peers,  or  the  law  of  the  land."  I 
believe  that  the  trial  by  peers  here  spoken  of  means 
trial  by  jury.  The  words  will  bear  this  meaning  ;  it 
is  certainly  impossible  to  give  them  any  other  satis- 
factory meaning,  and  it  is  idle  to  suppose  that  they 
were  thus  introduced  into  the  Great  Charter  without 
being  designed  to  be  seriously  significant. 

*  See  Forsyth,  pp.  16-1-167. 


200  RISE    AND   PROGRESS 

Some  writers  who  deny  the  applicability  of  tli« 
thirty-ninth  clause  of  John's  Charter,  and  the  twenty- 
ninth  of  Henry  III.,  to  trial  by  jury,  have  supposed 
that  the  expression  in  it  respecting  a  freeman's  trial 
by  his  peers  referred  to  the  old  county  court  and 
^hundred  criminal  judicature,  according  to  which  a 
freeman  was  certainly  tried  before,  if  not  by,  his 
brother  freemen.  We  cannot  suppose  (nor  have  I 
ever  seen  it  suggested)  that  this  clause  of  the  Charter 
related  to  civil  actions  only,  and  merely  meant  those 
proceedings  in  county  courts  and  courts  baron,  in 
which  the  attendant  suitors,  as  each  other's  peers, 
adjudicated  upon  claims  to  property.  The  whole 
spirit  of  the  clause,  as  well  as  the  arrangement  of 
its  words,  shows  clearly  that  it  was  mainly  designed 
as  a  safeguard  against  wrongful  penal  procedure,  and 
as  providing  a  just  mode  of  trial  in  proceedings  by 
the  Government  against  the  subject ;  though  it  was 
made  sufficiently  extensive  to  protect  rights  of  prop- 
erty as  well  as  rights  of  persons.  It  seems  to  me 
that  the  hypothesis  of  the  trial  by  peers  in  Magna 
Carta  meaning  the  criminal  judicature  of  the  county 
and  hundred  courts,  is  decisively  contradicted  by  the 
fact,  that  the  twenty-fourth  chapter  of  John's  Charter 
and  the  seventeenth  of  Henry's  forbade  the  sheriff 
and  other  inferior  officers  to  hold  pleas  of  the  Crown, 
and  thus  put  an  end,  almost  entirely,  to  the  criminal 
authority  of  those  tribunals.  It  has  been  explained 
already  to  how  scant  a  relic  the  power  of  the  tourn 
and  the  courts  leet  was  thereby  reduced  ;  and  it  is 
impossible  to  believe  that  the  thirty-ninth  clause  of 
John's  Charter  or  the  twenty-ninth  of  Henry's  sol- 
emnly ordained  a  mode  of  trial,  which  preceding 
sections  of  those  instruments  had  (with  trifling  excep- 
tions) solemnly  abolished. 

The  other  hypothesis  brought  forward  by  thoso 
who  deny  that  the  "Judicium  Parium"in  Magna 


OF    THE    CONSTITUTION.  20J 

Carta  means  trial  by  jury  is,  that  the  Great  Charter, 

in  speaking  of  trial  by  peers,  had  in  view  solely  the 

great  barons,  who,  as  members  and  peers  of  the  great 

Court  of  the  king,  had  a  right  to  be  tried  there  by 

i  .  their  peers.     Undoubtedly  this  clause  gives  a  peer  of 

vo  the  land  an  indisputable  right  to  a  trial  in  the  House 

^  of  Lords  ;  but  I  am  led  to  reject  the  interpretation 

r-  which  would  restrict  the  operation  of  the  clause  to 

\s  the  peerage  only,  by  a  consideration  of  the  circum- 

^  stances  and  documents  connected  with  the  passing  of 

^.  the  Great  Charter,  and  which  are  collected  by  Flack- 

^  stone  in  the  work  so  often  referred  to. 

King  John,  about  a  month  before  the  congress  at 
^,  Eunnymede,  had  made  a  fruitless  attempt  to  detach 
great  barons  from  the  formidable  national  rising 
against  him,  by  offering  to  them  and  their  immediate 
followers  the  privileges  which  the  thirty-ninth  chapter 
of  his  Great  Charter  afterwards  assured  to  every 
freeman  of  the  realm.  John's  letters  of  proffered 
compromise  are  still  in  existence,*  and  in  them  he 
writes,  "Be  it  known  that  we  have  granted  to  our 
barons  who  are  against  us,  that  we  will  neither  take 
nor  disseise  them  or  their  men,  nor  will  we  pass  upon 
them  by  force  or  by  arms,  except  by  the  law  of  our 
realm,  or  by  the  Judgment  of  their  Peers  in  our 
Court,"  &c. 

The  words  "  in  our  Court "  here  clearly  limit  the 
privilege  of  "  trial  by  peers  "  to  the  barons,  who  alone 
were  members  of  the  king's  Court,  or  could  have  their 
peers  there  to  try  them.  Had  these  words  been 
repeated  in  the  analogous  clause  in  the  Great  Char- 
ter, the  interpretation  which  we  are  now  considering 
would  have  appeared  correct  ;  but  the  phraseology 
of  Magna  Carta  is  widely  different.  Magna  Carta  says 


*  See  Blackstone's  "History  of  the  Charters,"  and  see  p.  115, 
end  notes. 

9* 


202  EISE   AND   PROGRESS 

"  NULLUS  LIBER  HOMO  dissaisietur,  &c.,  nisi  per  legale 
judicium  parium  suoram."  It  is  evident  that  the 
barons,  when  they  rejected  the  insidious  offer  of  Johc, 
and  refused  to  make  their  reform  a  mere  class  intrigue 
instead  of  a  great  national  movement,  took  care  so  to 
alter  the  terms  of  this  important  stipulation  as  to 
make  it  embrace  all  the  free  community.  I  cannot 
but  believe  that  the  framers  of  Magna  Carta  did 
intend  to  give  a  solemn  sanction  to  the  trial  by  jury, 
which  had  been  for  years  gradually  becoming  preva- 
lent, and  to  the  merits  of  which  I  cannot  suppose 
those  illustrious  statesmen  to  have  been  blind.  The 
expression  "  trial  by  peers,"  as  applied  to  trial  by 
jury,  though  it  may  not  have  enough  technical  accu- 
racy to  satisfy  a  mere  legal  antiquary,  is,  and  was  at 
the  time,  sufficiently  appropriate  to  justify  its  being  so 
understood  ;  and  so  it  certainly  has  been  generally 
understood  for  centuries,  by  England's  jurists,  judges, 
statesmen,  and  historians.* 

It  is  but  a  few  years  since  an  English  writer,  by 
proffering  an  eulogy  on  trial  by  jury,  would  have  laid 
himself  open  to  a  remark,  like  that  of  the  Spartan's  to 
the  rhetorician,  who  volunteered  a  panegyric  on  Her- 


*  I  have  not  thought  it  necessary  to  introduce  in  the  text  any  formal 
refutation  of  a  doctrine,  which  I  have  found  in  some  modern  law  books, 
that  although  the  Judicium  Parium  in  the  Great  Charter  means  trial  by 
jury,  no  peculiar  sanction  is  thereby  given  to  that  mode  of  trial,  because 
the  words  "  vel  per  legem  terrae"  follow  the  words  "judicium  parium." 
Had  nothing  more  been  intended  in  the  Great  Charter  than  to  ordain 
that  a  freeman  shall  not  be  imprisoned,  &c.,  except  by  the  law  of  the  land, 
there  would  have  been  no  need  to  insert  the  words,  "  per  legale  judicium 
parium  "  at  all.  But  if  it  was  designed  (as  I  believe  it  was)  to  sanction 
trial  by  jury  as  the  rule  in  our  courts,  though  with  necessary  exceptions, 
we  see  the  fullest  reason  for  the  Charter  being  worded  as  we  find  it.  Of 
course  there  would  be  no  "judicium  parium  "  wanted,  where  the  accused 
party  pleaded  guilty ;  or  where  the  trial  by  battle  was  lawfully  demanded, 
or  where  (in  civil  cases)  there  was  no  issue  of  fact  taken,  but  merely  a 
iamurrer  raised  to  the  legal  sufficiency  of  pleadings.  Many  other  ex- 
ceptional cases  may  bo  suggested,  but  they  are  all  such  exceptions  HJ 
prove  the  rule. 


OF   THE   CONSTITUTION.  203 

cules  :  "  Why,  who  ever  thought  of  finding  fault 
with  Hercules?"  But  now  the  fashion  has  sprung 
up  of  sneering  at  the  decisions  of  jurors  ;  and  we 
continually  hear  of  schemes  to  transfer  the  duty  of 
pronouncing  on  disputed  acts  from  the  jury-box  to  the 
bench.  Juries  are,  of  course,  liable  to  error ;  and, 
when  they  err,  their  blunders  are  made  in  public,  and 
draw  at  least  a  full  share  of  notice  ;  but,  on  the  other 
hand,  we  should  remember  the  invariable  honesty, 
and  the  almost  invariable  patience.,  with  which  juries 
address  themselves  to  their  duty.  No  spectacle  is 
more  markworthy  than  that  which  our  common  law 
courts  continually  offer,  of  the  unflagging  attention 
and  resolute  determination  to  act  fairly  and  do  their 
best,  which  is  shown  by  jurors,  though  wearied  by  the 
length  of  trials,  which  are  frequently  rendered  more 
and  more  wearisome  by  needless  cross-examinations 
and  unduly  prolix  oratory.  The  juries  of  our  agricul- 
tural districts,  with  a  good  share  of  smock  frocks  in 
the  jury-box  (the  constant  object  of  the  small  whis- 
pered wit  of  pert  professionals),  deserve  to  be  studied 
as  proofs  of  how  much  worth  is  veiled  in  low  estate  in 
England,  which  trial  by  jury  calls  into  action.  The 
thoughtful  observer  of  their  enduring  zeal  in  the 
unpaid  discharge  of  a  burdensome  function,  must 
reverence  from  the  very  depth  of  his  heart  the  twelve 
plain,  good,  and  lawful  men  before  him,  "  the  sturdy, 
honest,  unlettered  jurors,  who  derive  no  dignity  but 
from  the  performance  of  their  duties."  *  Such  generous 
fulness  and  fairness  in  hearing  and  thinking  before 
deciding  are  not  found  in  any  other  tribunal.  Ano- 
ther inestimable  advantage  peculiar  to  jury  trial  is, 
that  it  is  not  known  beforehand  who  will  be  the 
jurors  in  any  particular  case,  so  that  there  is  no  time 
given  for  the  work  of  corruption.  It  is  hardlyTmownJ 

*  Livingston's  Preface  to  tbe  "  Louisiana  Code." 


204  BISE   AtfD   PROGRESS 

even  at  the  trial,  who  the  individual  jurors  are  ;  and, 
when  the  trial  is  over,  the  members  of  the  jury  are 
dispersed  and  lost  sight  of  amid  the  mass  of  the 
community.  Hence  they  are,  while  acting,  exempt 
from  all  bias  of  fear  and  from  all  selfish  motive  to 
favour.  And  not  only  are  they  peculiarly  free  from 
all  evil  influences  upon  their  integrity,  but  they  are 
free  from  the  suspicion  of  being  so  influenced.  The 
people  have  full  confidence  in  their  honesty.  The 
same  amount  of  confidence  (whether  deserved  or  not) 
would  not  be  accorded  to  permanent  paid  officials  ; 
and  there  is  truth  in  the  seeming  paradox  of  Ben- 
tham,  that  it  is  even  more  important  that  the 
administration  of  justice  should  be  believed  to  be 
pure  than  that  it  should  actually  be  so.  Nor  are  the 
errors  of  judgment  which  juries  fall  into  by  any  means 
so  numerous  as  the  impugners  of  the  system  assert. 
The  jury  generally  know  what  they  are  about  much 
better  than  their  criticsdo.  "  Twelve  men  conversant 
with  life,  and  practised  in  those  feelings  which  mark 
the  common  and  necessary  intercourse  between  man 
and  man,"*  are  far  more  likely  to  discriminate  cor- 
rectly between  lying  and  truth-telling  tongues,  be- 
tween bad  and  good  memories,  and  to  come  to  a 
sound,  common-sense  conclusion  about  disputed  facts, 
than  any  single  intellect  is,  especially  if  that  single 
intellect  has  been  "  narrowed,  though  sharpened,"  by 
the  practice  of  the  profession  of  the  law. 

I  would  also  gladly  draw  attention  to  another 
eminent  merit  of  our  system  of  trial  by  jury,  as 
compared  with  the  system  of  trial  of  law  and  fact  by 
a  single  person.*  Our  method  of  trial  gives  peculiar 
guarantees  that  all  who  take  part  in  deciding  a  cause, 
both  the  judge  and  the  jury,  will  exercise  their  best 

*  Curran. 

t  I  am  indebted  to  my  friend  Mr.  Henry  Pearson,  for  the  suggestion 
of  this  argument  in  favour  of  trial  by  jury. 


OF   THE   CONSTITUTION.  205 


in<\, 

powers  of  attending  and  of  reasoning,  and  will  not 
give  way  to  hasty  impressions.  According  to  our 
system,  the  judge,  at  the  close  of  a  case,  sums  up  the 
evidence  to  the  jury  ;  and,  if  he  expresses  opinions 
of  his  own  on  matters  of  fact  for  their  considera- 
tion, he  tells  them  not  only  what  he  thinks,  but  also 
why  he  thinks  it.  He  is,  therefore,  obliged  to  tako 
careful  notes  throughout  the  trial,  arid  to  reason  out 
in  his  own  mind  the  whole  of  the  case.  But,  if  he 
had  to  try  the  cause,  and  pronounce  in  favour  of  one 
of  the  parties,  without  the  intervention  of  a  jury,  he 
would  be  under  no  such  necessity.  He  might  give 
way  to  laziness,  and  summarily  make  up  his  mind  in 
accordance  with  the  bias  for  ~or  against  one  party, 
which  is  so  apt  to  arise  in  our  minds  early  in  a  trial, 
but  which  is  also  so  often,  as  the  trial  proceeds, 
proved  to  be  erroneous.  Our  system  gives  safeguards 
of  a  similar  nature  against  hasty  conclusions  and 
imperfect  observation  on  the  part  of  the  jury.  Each 
juror  knows  that  it  is  not  by  him  alone,  but  by  him 
and  his  eleven  fellow-jurors  conjointly,  that  the 
verdict  is  to  be  given.  Each  juror,  therefore,  knows 
that,  if  any  of  the  eleven  differ  from  him  in  opinion 
at  the  end  of  the  case,  they  must  argue  the  matter 
out  among  them.  Each  juror,  therefore,  watches  the 
entire  progress  of  the  trial  with  his  reasoning  facul- 
ties intent  on  every  part  of  each  litigant's  case,  and 
thus  prepares  himself  for  a  full  and  fair  discussion 
and  judgment  of  the  whole. 

It  is  unquestionably  in  criminal  charges  that  the 
value  of  trial  by  jury  is  most  apparent,  but  the  prev- 
alence of  that  mode  of  trial  in  civil  causes  also,  so 
far  as  they  involve  disputes  of  fact,  is  of  incalculable 
advantage  to  the  community.  Mr.  Forsyth,  in  the 
work  which  I  have  before  mentioned,  refers  well  on 
this  point  to  the  opinion  of  one  of  the  most  profound 


206  RISE   AND   PROGRESS 

political  writers  of  the  present  age,  M.  de  Tocque- 
ville  : — 

"  We  must  not  suppose  that  it  is  trial  by  jury  in 
criminal  cases  only  that  exercises  a  beneficial  influ- 
ence, or  that  it  can  safely  stand  alone.  In  his  able 
and  philosophical  work,  De  la  Democratic  en  Ame"- 
rique,  M.  de  Tocqueville  avows  his  conviction  that  the 
jury  system,  if  limited  solely  to  criminal  trials,  is 
always  in  peril.  And  the  reasons  he  gives  for  this 
opinion  are  well  worthy  of  consideration.  He  says 
that  in  that  case  the  people  see  it  in  operation  only 
at  intervals,  and  in  particular  cases  ;  they  are  accus- 
tomed to  dispense  with  it  in  the  ordinary  affairs  of 
life,  and  look  upon  it  merely  as  one  means,  and  not 
the  sole  means,  of  obtaining  justice.  But  when  it 
embraces  civil  actions,  it  is  constantly  before  their 
eyes,  and  affects  all  their  interests  ;  it  penetrates  into 
the  usages  of  life,  and  so  habituates  the  minds  of 
men  to  its  forms,  that  they,  so  to  speak,  confound  it ' 
with  the  very  idea  of  justice.  The  jury,  he  continues, 
and  especially  the  civil  jury,  serves  to  imbue  the 
minds  of  the  citizens  of  a  country  with  a  part  of  the 
qualities  and  character  of  a  judge  ;  and  this  is  the 
best  mode  of  preparing  them  foEjfreedom.  It  spreads 
amongst  all  classes  a  respect  for  the  decisions  of  the 
law  ;  it  teaches  them  the  practice  of  equitable  deal- 
ing. Each  man  in  judging  his  neighbour  thinks  that 
he  may  be  also  judged  in  his  turn.  This  is  in  an 
especial  manner  true  of  the  civil  jury ;  for  although 
hardly  any  one  fears  lest  he  may  become  the  object  of 
a  criminal  prosecution,  every  body  may  be  engaged  in 
a  lawsuit.  It  teaches  every  man  not  to  shrink  from 
the  responsibility  attaching  to  his  own  acts :  and  this 
gives  a  manly  character,  without  which  there  is  no 
political  virtue.  It  clothes  every  citizen  with  a  kind 
of  magisterial  office  ;  it  makes  all  feel  that  they  have 
duties  to  fulfil  towards  society,  and  that  they  take  a 


OF    THE   CONSTITUTION.  207 

part  in  its  government ;  it  forces  men  to  occupy 
themselves  with  something  else  than  their  own  affairs, 
and  thus  combats  that  individual  selfishness,  which  is, 
as  it  were,  the  rust  of  the  community.  Such  are 
some  of  the  advantages  which,  according  to  the  view 
of  this  profound  thinker,  result  from  trial  by  jury  in 
civil  cases. 

"  But,  moreover,  iiis  one^great  instrument  for  the 
education  of  the  people.  MJ  est  la",  a  mon  avis/  says 
IVLjie  Tocqueville,  ^son  plus  grand  avantage/  He 
calls  It  a  school  into  which  admission  is  free  and  al- 
ways open,  which  each  juror  enters  to  be  instructed 
in  his  legal  rights,  where  he  engages  in  daily  commu- 
nication with  the  most  accomplished  and  enlightened 
of  the  upper  classes,  where  the  laws  are  taught  him 
in  a  practical  manner,  and  are  brought  down  to  the 
level  of  his  apprehension  by  the  efforts  of  the  advo- 
cates, the  instruction  of  the  judge,  and  the  very 
passions  of  the  parties  in  the  cause.  Hence,  says  M. 
de  Tocqueville,  f  Je  le  regarde  comme  Tun  des  moyens 
les  plus  eflficaces  dont  puisse  se  servir  la  societe  pour 
1'education  du  peuple.'  " 

I  will  appeal  to  one  authority  more  to  show  that 
the  institution  of  trial  by  jury  in  this  country  has 
not  only  given  us  the  fairest  system  of  trial  ever 
known,  but  has  also  for  centuries  been  of  incalculable 
national  advantage  as  an  instrument  of  national  edu- 
cation. I  gladly  quote  on  this  point  the  no  less  true 
than  eloquent  words  of  the  great  and  good  Dr. ^Ar- 
nold : — "  The  effect  of  any  particular  arrangement 
of  the  judicial  power  is  seen  directly  in  the  greater 
or  less  purity  with  which  justice  is  administered  ;  but 
there  is  a  further  effect,  and  one  of  the  highest  im- 
portance, in  its  furnishing  to  a  greater  or  less  portion 
of  the  nation  one  of  the  best  means  of  moral  and 
intellectual  culture,  the  opportunity,  namely,  of  exer- 
cising the  functions  of  a  judge.  I  mean,  that  to 


208    '  RISE   AND   PROGEESS 

accustom  a  number  of  persons  to  the  intellectual 
exercise  of  attending  to,  and  weighing  and  comparing 
evidence,  and  to  the  moral  exercise  of  being  placed  in 
a  high  and  responsible  situation,  invested  with  one  of 
God's  own  attributes — that  of  Judgment ;  and  having 
to  determine  with  authority,  between  truth  and  false- 
hood, right  and  wrong — is  to  furnish  them  with  very 
high  means  of  moral  and  intellectual  culture  ;  in 
other  words,  it  is  providing  them  with  one  of  the 
highest  lands  of  education." 

The  great  constitutional  enactments  of  Magna 
Carta  have,  from  the  very  earliest  times,  been  regard- 
ed in  that  light,  and  treated  not  as  temporary  regu- 
lations, but  as  the  fundamental  institutions  of  our 
government  and  laws,  ^heii  confirmation  was_re- 
peatedly  exacted  from  the  reigning  sovereign  byrnir 
parliaments  ;  not  because  the  Great  Charter  was  sup- 
posed to  become  invalid  without  such  ratification,  but 
in  order  to  impress  more  solemnly  on  impatient  princes 
and  profligate  statesmen  their  duty  of  respecting  the 
great  constitutional  ordinances  of  the  realm.  The 
most  awful  rites  of  religion  were  called  in  aid  by  the 
English  clergy  (to  whom,  as  Hallam  remarks,  we  are 
much  indebted  for  their  zeal  in  behalf  of  liberty 
during  the  thirteenth  century),  to  bind  the  slippery 
consciences  of  John's  son,  and  grandson,  and  to  awe 
them  by  the  terrors  of  excommunication  from  break- 
ing the  great  compact  between  the  Crown  and  the 
people.  The  most  earnest  efforts  were  also  employed, 
to  make  the  Great  Charter  familiarly  known  through- 
out the  land  by  all,  as  the  common  birthright  of  all, 
and  the  most  stringent  measures  of  law  were  devised 
to  insure  the  prompt  punishment  of  any  who  should 
dare  to  violate  it.  To  quote  a*\  inRfn.-np,p  or  two 
of  this  : — by  the  Confirmatio  Chartarum,  25  Ed.  I. 
(part  of  which  has  already  been  cited),  it  was  ordained 
that— 


OF   THE   CONSTITUTION.  209 

"  The  charters  of  liberties  and  of  the  forest  should 
be  kept  in  every  parish  ;  and  that  they  should  be  sent 
under  the  king's  seal  as  well  to  the  justices  of  the 
forest  as  to  others,  to  all  sheriffs  and  other  officers, 
and  to  ah1  the  cities  in  the  realm,  accompanied  by  a 
writ  commanding  them  to  publish  the  said  charters, 
and  declare  to  the  people  that  the  king  had  confirmed 
them  in  all  points.  All  justices,  sheriffs,  mayors,  and 
other  ministers  were  directed  to  allow  them  when 
pleaded  before  them ;  and  any  judgment  contrary 
thereto  was  to  be  null  and  void.  The  charters  were 
^to  be  sent  under  the  king's  seal  to  all  cathedral 
churches  throughout  the  realm,  there  to  remain,  and 
to  be  read  to  the  people  twice  a  year.  It  was  ordained 
that  all  archbishops  and  bishops  should  pronounce 
sentence  of  excommunication  against  those  who,  by 
word,  deed,  or  counsel,  did  contrary  to  the  aforesaid 
charters." 

By  the  "  Articuli  super  Cartas,"  a  statute  passed 
in  the  28th  Ed.  I.,  the  charters  are  ordered  to  be  read 
by  the  sheriffs  four  times  a  year,  before  the  people  of 
the  shire  in  open  county  court.  And  the  statute  fur- 
ther ordains,  that  for  the  punishing  of  offenders  against 
the  charters — 

"  There  shall  be  chosen,  in  every  shire  court,  by  the 
commonalty  of  the  same  shire,  three  substantial  men, 
knights,  or  other  lawful,  wise,  and  well  disposed  per- 
sons, which  should  be  justices  sworn  and  assigned  by 
the  king's  letters  patent  under  the  great  seal,  to  hear 
and  determine  without  any  other  writ,  but  only  their 
commission,  such  plaints  as  shall  be  made  upon  all 
those  that  commit  or  offend  against  any  point  con- 
tained in  the  aforesaid  charters,  in  the  shires  where 
they  be  assigned,  as  well  within  franchises  as  without, 
and  as  well  for  the  king's  officers  out  of  their  places 
as  for  others  ;  and  to  hear  the  plaints  from  day  to  day 
without  any  delay,  and  to  determine  them,  without 


210  RISE    AND   PKOGKESS 

nllowing  the  delays  which  be  allowed  by  the  common 
law.  And  the  same  knights  shall  have  power  to  pun- 
ish all  such  as  shall  be  attainted  of  any  trespass  done 
contrary  to  any  point  of  the  aforesaid  charters  where 
no  remedy  was  before  by  the  common  law,  as  before 
is  said,  by  imprisonment,  or  by  ransom,  or  by  amer- 
ciament,  according  to  the  trespass." 

A  volume,  precious  to  Englishmen  for  the  merits 
both  of  its  subject  and  of  its  authors,  might  easily  be 
collected  from  the  jDa.nggyjisis.of  Magna  Carta.  Lord 
Chatham  has  been  already  quoted  ;  we  may  well  re- 
call the  words  of  one  statesman  more,  who  is  selected 
on  account  of  his  eminence  as  an  historian,  and  as  a 
philosophical  and  political  inquirer.  His  eloquent 
observations  are  also  the  more  valuable  for  citation 
here,  because  they  forcibly  point  out  the  existence  in 
our  constitution  of  that  law  of  progress  and  develop- 
ment, the  operation  of  which  it  is  one  of  the  principal 
objects  of  these  pages  to  illustrate.  Sir  James  Mack- 
intosh says  of  Magna  Carta  :  — 

"  It  was  a  peculiar  advantage  that  the  consequences 
of  its  principles  were,  if  we  may  so  speak,  only  dis- 
gmr[i]q]]y  and  slowly.     It  gave  out  on  each 


occasion  only  as  much  of  the  spirit  of  liberty  and  re- 
formation as  the  circumstances  of  succeeding  genera- 
tions required,  and  as  their  character  would  safely 
bear.  For  almost  five  centuries  it  was  appealed  to  as 
the  decisive  authority  on  behalf  of  the  people,  though 
commonly  so  far  only  as  the  necessities  of  each  case 
demanded.  Its  effect  in  these  contests  was  not  alto- 
gether unlike  the  grand  process  by  which  Nature 
employs  snows  and  frosts  to  cover  her  delicate  germs, 
and  to  hinder  them  from  rising  above  the  earth  till 
the  atmosphere  has  acquired  the  mild  and  equal  tem- 
perature which  insures  them  against  blights.  On  the 
English  nation,  undoubtedly,  the  Charter  has  contri- 
buted to  bestow  the  union  of  establishment  with  im- 


OF   THE   CONSTITUTION.  211 

provement.  To  all  mankind  it  set  the  fir^t  example 
of  the  progress  of  a  great  people  for  'centuries,  in 
blending  their  tumultuary  democracy  and  haughty 
nobility  with  a  fluctuating  and  vaguely-limited  mon- 
archy, so  as  at  length  to  form  from  these  discordant 
materials  the  only  form  of  free  government  which 
experience  had  shown  to  be  reconcilable  with  widely- 
extended  dominions.  Whoever  in  any  future  age  or 
yet  unborn  nation  may  admire  the  felicity  of  the 
expedient  which  converted  the  power  of  taxation  into 
the  shield  of  liberty,  by  which  discretionary  and  secret 
imprisonment  was  rendered  impracticable,  and  por- 
tions of  the  people  were  trained  to  exercise  a  larger 
share  of  judicial  power  than  ever  was  allotted  to  them 
in  uny  other  civilized  State,  in  such  a  manner  as  to 
secure,  instead  of  endangering,  public  tranquillity ; 
whoever  exults  at  the  spectacle  of  enlightened  and 
independent  assemblies,  which,  under  the  eye  of  a 
well-informed  nation,  discuss  and  determine  the  laws 
and  policy  likely  to  make  communities  great  and  hap- 
py; whoever  is  capable  of  comprehending  all  the 
effects  of  such  institutions  with  all  their  possible 
improvements  upon  the  mind  and  genius  of  a  people, 
— is  sacredly  bound  to  speak  with  reverential  grati- 
tude of  the  authors  of  the  Great  Charter.  To  have 
produced  it,  to  have  preserved  it,  to  have  matured  it, 
constitute  the  immortal  claim  of  Englan^.  upon  the 
esteem  of  mankind.  Her  .Bacons  and  IShakspeares. 
her  Miltons  and  Newtons,  with  all  the  truth  which 
they  have  revealed,  and  all  the  generous  virtue  which 
they  have  inspired,  are  of  inferior  value  when  com- 
pared with  the  subjection  of  men  and  their  rulers  to 
the  principles  of  justice,  if,  indeed,  it  be  not  more 
true  that  these  mighty  spirits  could  not  have  been 
formed  except  under  equal  laws,  nor  roused  to  full 
activity  without  the  influence  of  that  spirit  which  the 
Great  Charter  breathed  over  their  forefathers."  * 

•  Mackintosh,  "Hist.  Eng.,"vol.  i.  D.  221. 


212  RISE   AND   PROGRESS 


CHAPTEK  XIV. 

Progress  of  the  Constitution  during  the  Reigns  of  the  ten  last  Plantagenct  Kings.- 
Growing  Importance  of  the  House  of  Commons. — Qualifications  of  Members  an<l 
Electors. — Prerogatives  of  the  Crown. — State  of  the  Population,-- Jurors.— Borough* 
— Number  of  Electors. 

IT  has  been  shown  in  the  preceding  pages  that  the 
thirteenth  century  saw  the  commencement  of  our  na- 
tionality, and  that  during  it  the  great  foundations  of 
our  constitution  were  laid.  But  it  would  be  ignorant 
rashness  to  assert  that  the  organization  of  our  insti- 
tutions was  complete  even  at  the  time  of  the  death 
of  Edward  I.,  A.D.  1307.  What  was  said  of  the 
Koman  Constitution  by  two  of  its  greatest  statesmen, 
and  written  by  another,  may  with  equal  truth  be 
averred  of  the  English, — that  no  one  man  and  no  one 
age  sufficed  for  its  full  production.*  But  its  kindly 
growth  went  rapidly  on  during  the  reigns  of  thejater 
Plan tagen eta  ;  and  the  historian  of  the  last  centuries 
of  the  middle  ages,f  traces  with  pride  and  pleasure 
the  increase  and  systemization  of  the  power  of  the 
House  of  Commons  in  asserting  and  maintaining  the 

*  "  Turn  Laelius,  nunc  fit  illud  Catonis  ccrtins,  nee  temporis  unius, 
nee  hominis  esse  constitutionem  reipublicae." — Cicero  De  Jtepublica,  lib. 

a.  21. 

t  See  throughout  the  3"d  part  of  the  8th  chapter  of  Hallam's  "  Mid- 
dle Ages,"  and  the  valuable  supplemental  notes  to  the  last  edition.  The 
student  may  also  examine  with  great  advantage  the  seven  last  lectures 
of  the  2nd  part  of  M.  Guizotfs  "  History  of  Representative  Government." 


OF   THE   CONSTITUTION.  213 

exclusive  right  of  taxation  ;  in  making  the  grant  of 
eupplies  dependent  on  the  redress  of  grievances  ;  in 
directing  and  checking  the  public  expenditure  ;  in 
establishing  the  necessity  of  the  concurrence  of  both 
Houses  of  Parliament  in  all  legislation  ;  in  securing 
the  people  against  illegal  ordinances  and  interpola- 
tions of  the  statutes  ;  in  inquiring  into  abuses  ;  in 
controlling  the  royal  administration  ;  in  impeaching 
and  bringing  to  punishment  bad  ministers  and  other 
great  offenders  against  the  laws  and  liberties  of  the 
land  ;  and  in  defining  and  upholding  their  own  im- 
munities and  privileges. 

The  limits  of  this  work  will  only  permit  the 
citation  here  of  a  few  proofs  of  the  progress  of  our 
constitution  during  this  time.  More  elaborate  trea- 
tises must  be  referred  to  for  full  information. 

In  the  second  year  of  Edward  II  /s  reign  we  find 
the  Commons,  when  applied  to  for  a  grant  of  money 
to  the  Crown,  making  it  "upon  condition  that  the 
king  should  take  advice  and  grant  redress  upon  cer- 
tain articles  wherein  they  are  aggrieved.  They  com- 
plain that  they  are  not  governed  as  they  ought  to  be, 
especially  as  to  the  articles  of  the  Great  Charter."  * 

In  1322  a  statute  was  passed,  declaring  that  "  the 
matters  to  be  established  for  the  estate  of  the  king 
and  of  his  heirs,  and  for  the  estate  of  the  realm  and 
of  the  people,  should  be  treated,  accorded,  and  estab- 
lished in  parliament,  by  the  king,  and  by  the  assent 
of  the  prelates,  earls,  and  barons,  and  the  commonalty 
of  the  realm,  according  as  had  been  before  accus- 
tomed." Mr.  Hallam  well  observes  that  "  this  statute 
not  only  establishes,  by  a  legislative  declaration,  the 
present  constitution  of  parliament,  but  recognizes  it 
as  already  standing  upon  a  custom  of  some  length  of 
time."t  During  Edward  III.'s  long  and  active  reign, 

*  Hallam,  p.  40. 

t  "  Coustitutional  History  of  England,"  vol.  L  p.  5. 


214  BISE   AND    PROGRESS 

the  wars  in  which  that  sovereign  was  almost  continu- 
ally engaged,  kept  him  dependent  on  his  parliament 
for  supplies  of  money  ;  and  the  power  of  the  Com- 
mons was  thereby  materially  augmented,  notwith- 
standing the  high  abilities  of  Edward,  and  his  fondness 
for  his  royal  prerogatives.  The  king  was  continually 
attempting  to  raise  money  by  arbitrary  and  illegal 
imposts  ;  but  the  Commons  never  ceased  to  remon- 
strate against  such  acts,  and  to  insist  on  the  funda- 
mental right  of  there  being  no  taxation  without 
consent.  The  complete  and  permanent  division  of 
parliament  into  two  Houses,  as  at  present,  is  admitted 
by  all  writers  to  have  been  established  in  this  reign, 
if  not  earlier. 

The  Commons  have  now  formed  themselves  into  a 
body  or  estate  of  the  realm,  distinct  from  the  estate 
of  the  prelates  and  abbots,  or  spiritual  peers,  distinct 
from  the  estate  of  the  temporal  peers,  distinct  from  the 
Crown,  but  comprehending  all  the  rest  of  the  free 
human  beings  that  live  in  the  land.  A  distinct  House 
of  Parliament  represents  this  estate  of  the  Commons, 
and  is  now  generally  (and  with  substantial,  though 
not  literal  accuracy)  spoken  of  as  being  itself  that 
which  it  represents,  as  the  Commons  of  the  realm. 

The  leading  feature  of  our  constitutional  history 
is  no  longer  a  conflict  between  the  king  and  the 
barons,  wherein  the  Commons,  as  auxiliaries  of  the 
barons,  play  a  mere  secondary  part.  That  conflict  has 
to  a  great  extent,  ceased.  The  reign  of  Edward  III 
presents  to  us  the  aspect  of  the  baronial  aristocracy 
grouped  round  the  throne,  while  the  Commons  are 
the  party  of  progress.  Not  that  the  nobles  of  Eng- 
landnavegivenuptheir  high  station  of  protectors  of 
the  liberties  of  England  ;  on  great  emergencies,  espe- 
cially in  the  reign  of  Richard  II.,  we  shall  see  them 
acting  in  unison  with  the  Commons  in  the  national 
cause.  But,  as  a  general  rule,  it  is  the  Lower  House 


OF   THE   CONSTITUTION.  215 

of  Parliament  that  now  supports  the  struggle  for 
3onstitutional  rights  and  for  the  advancement  of  pop- 
ular power.  "  The  Commons  do  not,  indeed,  aspire  to 
snatch  the  supreme  power  from  the  hands  of  the  king 
and  the  barons  ;  they  would  not  have  strength  enough 
to  do  so,  nor  do  they  entertain  any  thought  of  it  ; 
but  they  resist  every  encroachment  upon  those  rights 
which  they  are  beginning  to  know  and  to  appreciate  ; 
they  have  acquired  a  consciousness  of  their  own  im- 
portance, and  know  that  all  public  affairs  properly  fall 
under  their  cognizance.  Finally,  either  by  their  peti- 
tions, or  by  their  debates  in  reference  to  taxation, 
they  are  daily  obtaining  a  larger  share  in  the  govern- 
ment, exercise  control  over  affairs  which,  fifty  years 
before,  they  never  heard  mentioned,  and  become,  in  a 
word,  an  integral  and  almost  indispensable  part  of 
the  great  national  council,  and  of  the  entire  political 
machine/'* 

It  is  also  observable,  that  the  Commons,  during 
this  reign,  in  their  opposition  to  the  royal  power,  do 
not  attack  the  king  himself,  but  they  lay  all  blame 
upon  his  ministers,  and  begin  to  "  assert  and  popular- 
ize the  principles  of  parliamentary  responsibility." 
They  frequently  addressed  J^dward,  complaining  ~  of 
his  counsellors  and  officers  ;  and  in  1376  we  find  them 
exercising,  for  the  first  time,  the  formidable  constitu- 
tional weapon  of  impeachmentr  In  that  year  the 
Commons  accused,  before  the  House  of  Lords,  the 
Lords  Latimer  and  Nevil,  and  four  commoners,  Lyons, 
Ellis,  Peachey,  and  Bury,  who  had  been  employed  by 
the  king  in  revenue  matters,  for  various  acts  of  min- 
isterial misconduct.f  The  Lords  tried  and  convicted 
them,  except  Bury,  who  did  not  appear  to  take  his 


*  Gui2ot's  "  History  of  Representative  Government,"  part  ii.  lect.  22, 
+  See  3  Rot.  Parl.,  323.     An  erroneous  reference  to  Rymer  is  given 
in  IMlam. 


216  RISE   AND   PROGRESS 

trial.  The  records  of  these  proceedings  well  deserve 
attention,  especially  of  the  trials  of  Latimer  and  Ne- 
vil. 

The  right  of  impeachment  most  strikingly  illus- 
trates the  great  principle  that  the  ministers  and 
servants  of  the  Crown  are  responsible  for  acts  of 
misconduct  in  which  they  take  part,  notwithstanding 
that  they  may  have  acted  under  the  order  of  the 
sovereign.  But  the  exercise  of  this  principle  is  not 
limited  to  parliamentary  impeachment.  It  is  far 
more  ample  and  useful. 

The  supremacy  of  law  over  rega.]  power  has  been 
made  a  rule  of  universal  and  constant  practical  appli- 
cation in  England,  by  our  courts  early  recognizing  the 
right  of  every  subject,  who  has  been  injured  by  any 
illegal  stretch  of  power,  to  sue  the  officer  who  has 
been  the  minister  of  injury  to  him,  and  to  recover,  by 
the  verdict  of  a  jury,  compensation  in  damages  for 
the  trespass  that  has  been  committed  against  him 
Closely  connected  with  this  is  the  recognized  right  of 
every  individual  to  resist  the  execution  of  an  illegal 
act  against  his  person  or  property,  although  it  is  an 
officer  of  the  regular  executive  power  of  the  State 
who  seeks  to  commit  the  act,  and  who  seeks  to  do  it 
in  his  official  character.  It  is  no  excuse  for  the  officer 
that  he  acts  by  the  order  of  regular  superior  authori- 
ty.* Professor  Lieber  has  well  observed  that  this 
principle  of  ministerial  responsibility  is  so  natural 
to  the  English  and  their  descendants  in  the  United 


*  A  rational  exception  to  this  rule  was  made  in  George  II.'s  reign  by 
a  ntatute  (24  Geo.  II.  c.  44),  indemnifying  constables,  who  act,  bond  fide. 
nnder  a  justice's  warrant.  The  same  statute  requires  that  notice  of  ac- 
tion be  given  to  a  justice,  before  he  is  sued  for  anything  done  in  execution 
of  his  office,  and  enables  him  to  make  a  legal  tender  of  amends.  For 
other  statutes  of  a  similar  nature,  see  Chitty's  Statutes,  Title  "  Justices 
of  the  Peace."  The  late  Act,  11  and  12  Victoria,  c.  44,  has  carried  in- 
dulgence to  magisterial  iucompetcncy  to  a  mischievous  extent. 


OF    THE   CONSTITUTION.  217 

States  of  America,  that  few  of  us  are  struck  with  its 
vital  importance  to  civil  liberty,  and  with  the  extent 
to  which  it  distinguishes  a  thorough  government  of 
law  from  a  government  of  functionaries.  In  othei 
countries  an  officer  cannot  be  sued  for  his  official  acts, 
without  the  injured  party  first  obtaining  from  the 
superior  powers  permission  to  bring  his  action,  and 
obedience  to  the  acts  of  regularly-constituted  officials 
is  in  all  cases  required.* 


*  Lieber  on  "  Civil  Liberty  and  Self  Government,"  p.  91.  The  whole 
passage  is  so  instructive  that  I  shall  lay  it  before  the  reader;  who,  how- 
ever, cannot  do  better  than  make  Professor  Lieber's  volume  the  subject 
of  attentive  study,  if  he  wishes  to  store  his  mind  with  sound  leading  prin- 
ciples in  statesmanship  and  jurisprudence  : — 

"  The  guarantee  of  the  supremacy  of  the  law  leads  to  a  principle 
which,  so  far  as  I  know,  it  has  never  been  attempted  to  transplant  from 
the  soil  inhabited  by  Anglican  people,  and  which,  nevertheless,  has  been, 
in  our  system  of  liberty,  the  natural  production  of  a  thorough  government 
of  law,  as  contra-distinguished  to  a  government  of  functionaries.  It  is 
so  natural  to  the  Anglican  tribe  that  few  think  of  it  as  essentially  impor- 
tant to  civil  liberty,  and  it  is  of  such  vital  importance  that  none  who 
have  studied  the  acts  of  government  elsewhere,  can  help  recognising  it  as 
an  indispensable  element  of  civil  liberty. 

"  It  is  simply  this,  that,  on  the  one  hand,  every  officer,  however  high 
or  low,  remains  personally  answerable  to  the  affected  person  for  the 
legality  of  the  act  he  executes,  no  matter  whether  his  lawful  superior  has 
ordered  it  or  not,  and  even,  whether  the  executive  officer  had  it  in  his 
power  to  judge  of  the  legality  of  the  act  he  is  ordered  to  do  or  not ;  and 
that,  on  the  other  hand,  every  individual  is  authorised  to  resist  an  unlaw- 
ful act,  whether  executed  by  an  otherwise  lawfully-appointed  officer  or 
not.  The  resistance  is  made  at  the  resistor's  peril.  In  all  other  coun- 
tries, obedience  to  the  officer  is  demanded  in  all  cases,  and  redress  can 
only  take  place  after  previous  obedience.  Occasionally  this  principle  acts 
harshly  upon  the  officer ;  but  we  prefer  this  inconvenience  to  the  inroad 
which  its  abandonment  would  make  in  the  government  of  law.  We  will 
cot  submit  to  individual  men,  but  only  to  men  who  are,  and  when  they 
are  the  organs  of  the  law.  A  coup-<retdt,  such  as  we  tave  lately  seen  in 
France,  would  not  be  feasible  in  a  nation  accustomed  to  this  principle. 
All  the  answer  which  the  police  officers  gave  to  men  like  General  Cavaig- 
nac,  who  asked  them  whether  they  were  aware  they  committed  a  high 
:rimo  in  arresting  a  representative  of  the  people,  was  that  they  had  orders 
from  theii  superior,  and  had  nothing  to  do  with  the  question  of  legality. 

"  Take  as  an  instance  of  the  opposite  to  the  French  principle  of  that 
nuge  institution  called  gens-d'armerie,  the  following  simple  case. 

"  A  sheriff,  provided  with  the  proper  warrant,  has  the  right,  alter 
request  and  denial  to  open  the  house-door,  forcibly  to  open  it,  if  a  third 

10 


218  KISE   AND   PROGRESS 

Edward  frequently  asked  the  advice  of  his  parlia.- 
m£nton  questions  of  war  and  peace.  Some  have 
thought  "mat  this  was  done  by  trie  king  through 
artifice,  with  a  view  to  throw  the  responsibility  of 
warfare  on  the  Commons,  and  prevent  their  murmur- 
ing, when  asked  for  subsidies,  but  that  the  Commons 
avoided  the  responsibility.  But  M.  Guizot  contends,  I 
think  correctly,  that  the  Commons  of  the  14th  cen- 
tury -frequently  sought  and  exercised  the  power  of 
thus  interfering  in  the  administration  of  the  public 
affairs  of  the  kingdom.  "  They  accepted  the  atten- 
dant responsibility,  and  they  gained  greatly  by  it. 
In  1328,  during  the  minority  of  Edward,  and  while 
Mortimer  reigned  in  his  name,  the  treaty  of  jpeace 
with  Scotland,  which  fully  liberated  that  kingdom 
from  all  feudal  subordination  to  England,  was  con- 


party  has  taken  refuge  in  it,  or  sent  his  goods  there.  "  Every  man's 
house  is  his  castle,"  will  not  protect  any  one  but  the  bona,  fide  dweller  in 
it.  Nevertheless  the  sheriff,  provided  with  his  legal  warrant,  does  it  at 
his  own  peril ;  for  if  he  break  open  the  house,  however  well  his  suspicion 
may  be  grounded,  and  neither  the  party  nor  the  goods  sought  for  be 
there,  the  sheriff  is  a  trespasser,  and  as  such  answerable  to  the  inhabi- 
tant of  the  house  before  the  courts  of  the  land.  This  may  be  inconven- 
ient in  single  cases.  It  may  be  that  the  maxim  which  has  been  quoted 
has  '  been  carried  as  far  as  the  true  principles  of  political  practice  will 
warrant — perhaps  beyond  what,  in  the  scale  of  sound  reason  and  good 
policy,  they  will  warrant.'  I  doubt  it,  whatever  the  inconvenience  in 
single  cases  may  be.  All  law  is  inconvenient  in  some  cases  ;  but  even 
if  this  opinion  were  well  founded,  how  august,  on  the  other  hand,  appears 
the  law — I  do  not  mean  a  single  statute,  but  the  whole  self-evolving  sys- 
tem of  a  common  law  of  the  land — that  errs  on  the  side  of  individual 
liberty  against  the  public  power  and  the  united  weight  of  Government  1 
Another  proof  of  the  uniform  acknowledgment  of  this  principle  and  essen- 
tial pillar  of  civil  liberty,  is  this,  that  when  a  British  minister  obtains  an 
act  of  indemnity,  which  is  an  act  of  impunity  for  certain  illegal  acts, 
which,  nevertheless,  necessity  demanded,  the  act  of  indemnity  is  never 
'or  him  alone,  but  it  expresses  that  the  act  shall  also  cover  what  the  in- 
ferior officers  have  done  by  the  direction  of  the  minister  in  the  premises. 
"  In  conclusion  I  would  remark,  that  it  is  wholly  indifferent  who  gives 
the  order.  If  it  be  illegal,  the  person  who  executes  it  remains  responsi- 
bh  for  the  act,  although  the  president  or  the  kiug  should  have  ordered  it, 
or  the  offending  person  should  be  a  soldier  obeying  his  commander.  Il 
is  a  stern  law,  but  it  is  a  sacred  principle,  and  it  has  worked  welL" 


OF    THE    CONSTITUTION.  219 

eluded  with  the  consent  of  the  parliament.  The  Com- 
mons are  expressly  mentioned  ;  and  we  may  suppose 
that  Mortimer  was  anxious  thereby  to  cover  his  own 
responsibility  for  a  disgraceful  treaty.  In  1331,  Ed- 
ward consulted  the  parliament  on  the  question  of 
peace  or  war  with  France,  on  account  of  his  continen- 
ta.  possessions,  and  also  upon  his  projected  journey  to 
Ireland.  The  parliament  gave  its  opinion  in  favour 
of  peace,  and  of  the  king's  departure  for  Ireland.  In 
1336,  it  urged  the  king  to  declare  war  against  Scotr 
land,  saying  :  '  That  the  king  coulcTno  longer,  with 
honour,  put  up  with  the  wrongs  and  injuries  daily 
done  to  him  and  his  subjects  by  the  Scots.'*  In 
1341,  after  Edward's  first  victories  in  France,  the 
parliament  pressed  him  to  continue  the  war,  and 
furnished  him  with  large  subsidies  ;  and  all  classes  of 
society  bestirred  themselves  to  support  the  king  in  a 
conflict  which  had  become  national.  In  1343,  the 
parliament  was  convoked  to  examine  and  advise  what 
had  best  be  done  in  the  existing  state  of  affairs, 
especially  in  regard  to  the  treaty  recently  concluded 
by  the  king  with  his  enemy  the  kine  of  France.  Sir 
Bartholomew  Burghersh  told  the  parliament  that  '  as 
the  war  was  begun  by  the  common  advice  of  the 
prelates,  great  men,  and  Commons,  the  king  could 
not  treat  of,  or  make  peace,  without,  the  like  assent/f 
The  two  Houses  deliberated  separately,  and  gave 
their  opinion  that  the  king  ought  to  make  peace  if 
he  could  obtain  a  truce  that  would  be  honourable  and 
advantageous  to  himself  and  his  fiiends  ;  but  if  not, 
the  Commons  declared  that  they  would  aid  and  main- 
tain his  quarrel  with  all  their  power.  In  1344,  when 
the  truce  with  the  king  of  France  had  been  broken 
off  by  him,  the  parliament,  on  being  consulted ,  mani- 
fested a  desire  for  peace,  but  thought  it  could  only  \»a 

•  "  Parliamentary  History,"  vol.  i.  p.  93.  t  Ibid.,  p.  l^G. 


220  RISE   AND    PROGRESS 

obtained  by  carrying  on  the  war  with  energy,  and 
voted  large  subsidies  for  the  purpose.  In  1348,  the 
war  had  become  increasingly  burdensome  ;  all  the 
subsidies  proved  insufficient  ;  and  the  king  again  con- 
.,  suited  the  parliament  '  concerning  the  war  undertaken 

•  with   its  consent.'     The    Commons,   perceiving  that 
they  had  gone  rather  too  far  in  their  language,  now 

,  Jf     showed  greater  reserve,  and  answered  '  that  they  were 

v\    not  able  to  advise  anything  concerning  the  war,  and 

£    therefore  desired  to  be  excused  as  to  that  point  ;  and 

that   the  king  will   be   advised   by  his   nobles    and 

%(y   Council,  and  what  shall  be  by  them  determined,  they 

would   consent   unto,    confirm,    and    establish.  *     In 

1354,  the  Lord  Chamberlain,  by  the  king's  command, 

informed  the  parliament :  '  That  there  was  great  hopes 

of  bringing   about   a    peace   between   England   and 

France,  yet   the  king  would  not  conclude  anything 

•  without   the   consent   of  his    Lords   and   Commons. 
Wherefore  he  demanded  of  them,  in  the  king's  name, 
whether  they  would  assent  and  agree  to  a  peace,  if  it 
might   be   had   by   treaty.'     To   this   the    Commons 
replied  at  first,  '  that  what  should  be  agreeable  to  the 
king  and  his  Council  in  making  of  this  treaty,  would 
be  so  to  them  ; '  but  on  being  asked  again,  '  If  they 
consented   to    a    perpetual    peace,   if   it    might    be 
had,'  they  all  unanimously  cried  out,  Yea  !  Yea  !  f 
Finally  on  the  25th  of  January,  1361,  peace  having 
been  concluded  by  the  treaty  of  Bretigny,  the  parlia- 
ment was  convoked,  the  treaty  was  submitted  to  its 
inspection  and  received  its  approval,  and  on  the  31st 
a,  solemn  ceremony  took  place  in  the  cathedral  church 
at  Westminster,  when  all  the  members  of  parliament, 
both  Lords  and  Commons,  individually  swore  upon  the 

to  observe  the  peace. 


*  "  Parliamentary  History, "  vol.  i.  p.  115, 
f  Ibid.,  p.  122. 


OF   THE    CONSTITUTION.  221 

"  In  1368,  the  negotiations  with  Scotland  were 
submitted  to  the  consideration  of  the  parliament  ; 
the  king  of  Scotland,  David  Bruce,  offered  peace  on 
condition  of  being  relieved  from  all  homage  of  his 
crown  to  the  king  of  England.  The  Lords  and 
Commons  replied,  '  That  they  could  not  assent  to  any 
such  peace,  upon  any  account,  without  a  disherison 
of  the  king,  his  heirs  and  crown,  which  they  them- 
selves were  sworn  to  preserve,  and  therefore  must 
advise  him  not  to  hearken  to  any  such  propositions  ;'* 
and  they  voted  large  subsidies  to  continue  the  war. 

"  In  1369,  the  king  consulted  the  parliament  as 
to  whether  he  should  recommence  jlie  war  with 
France,  because  the  conditions  of  the  last  treaty  had 
not  been  observed  ;  the  parliament  advised  him  to  do 
so,  and  voted  subsidies. 

"  These  facts  prove  the  most  direct  and  constant 
intervention  of  the  Commons  in  matters  of  peace  and 
war.  Nor  did  they  seek  to  elude  this  responsibility,  so 
long  as  the  war  was  successful  and  national.  When 
the  subsidies  became  excessive,  they  manifested  greater 
reserve  in  giving  their  opinion  beforehand.  When 
fortune  turned  "decidedly  against  Edward  III.,  at 
the  close  of  his  reign,  the  Commons,  as  we  have  seen, 
took  advantage  of  the  right  of  intervention  which 
they  had  acquired,  to  possess  themselves  also  of  the 
right  of  impeaching  the  ministers,  to  whom  they 
attributed  the  misfortunes  of  the  time.  All  this 
follows  in  the  natural  course  of  things,  and  clearly 
demonstrates  the  continually-increasing  influence  of 
the  Commons  in  political  matters." 

The  acknowledged  right  of  the  Commons  to  par- 
ticipate in  legislation  is  proved  (as  M.  Guizot  weC 
observes)  by  the  very  phraseology  flf  thp  «*fl-t".fo  jinoV 
"  When  we  open  a  collection  of  the  statutes  of  this 

*  "  Parliamentary  History,"  p.  131. 


222  RISE   AND    PROGRESS 

reign,  we  find  at  the  head  of  each  statute  one  of  the 
two  following  formulas  :  'A  la  requeste  de  la  com- 
mune de  son  ro'ialme  par  lor  petitions  mises  devant 
lui  et  son  conseil,  par  assent  des  pr flats,  comics, 
barons,  et  autres  grantz,  au  dit  parlement  assembles,' 
&c.*  Or  :  '  Par  assent  des  prelats,  comtes,  et  bar- 
ons, et  de  tote  la  commune  du  ro'ialme,  au  dit  parle- 
ment assembles,'  &c.f  Sometimes  the  statute  begins 
with  these  words  :  l  Ce  sont  les  choses  que  notre 
seigneur  le  roi,  les  pr£lats,  seignours,  et  la  commune 
ont  or  dine  en  ce  present  parlement.' "  %  § 

Another  important  fact  characterising  the  reign 
of  Edward  III.,  is  "  the  j-ftpnUrity  wj|,]i  which  the 
parliament  was  convoked.  A  measure  was  adopted 
for  this  purpose  in  1312,  during  the  reign  of  Edward 
II.,  by  the  Lords  Ordainers.  Subsequently  we  meet 
with  two  statutes  relative  to  the  convocation  of  this 
assembly,  one  of  which  was  passed  in  1331,  and  the 
other  in  1362.  Finally,  in  1377,  the  last  year  of  the 
reign  of  Edward  III.,  the  Commons  themselves  de- 
manded by  petition  that  the  sessions  of  parliament 
should  take  place  regularly  every  year.  During  the 
reign  of  Edward  III.,  we  may  enumerate  forty-eight 
sessions  of  parliament,  which  make  nearly  one  session 
in  each  year. 

"  Nor  did  the  parliament  merely  provide  for  the 
regularity  of  its  convocation  ;  it  took  measures,  at  the 
same  time,  to  ensure  the  security  of  its  deliberations. 
In  1332,  a  royal  proclamation  iorbade  all  persons  to 
wear  coats  of  mail,  or  to  carry  any  other  offensive  or 

*  "  At  the  request  of  the  Commons  of  his  realm,  by  their  petitions 
laid  before  him  and  his  council,  and  by  the  assent  of  the  prelates,  earls, 
barons,  and  other  nobles,  in  the  said  parliament  assembled." 

f  "  By  the  assent  of  the  prelates,  earls,  and  barons,  and  of  all  the 
Commoiis  of  the  realm,  in  the  said  parliament  assembled." 

J  "  These  are  the  things  which  our  lord  the  king,  the  prelates, 
aiii  Commons  have  ordained  in  this  present  parliament." 

§  Guizot. 


OF    THE   CONSTITUTION.  223 

defensive  arms,  in  those  towns  in  which  the  parlia- 
ment was  sitting :  it  also  prohibited  all  games  and 
diversions  which  might  disturb  the  deliberations  of 
the  assembly.  The  frequent  recurrence  of  proclama- 
tions of  this  kind  announces  the  formation  of  a  reg- 
ular assembly."  * 

During  the  twenty-two  years  of  the  reign  of  Rich- 
ard II.,  the  power  of  the  Commons  made  rapid  pro- 
gress, and  at  the  accession  of  Henry  IV.  "of  the 
three  capital  points  in  contest  while  Edward  III. 
reigned,  1st,  that  money  could  not  be  levied  ;  2nd,  or 
laws  enacted  without  the  Commons'  consent ;  and 
3rd,  that  the  administration  of  Government  was  sub- 
ject to  their  inspection  and  control,  the  first  was  ab- 
solutely decided  in  their  favour,  the  second  was  at 
least  perfectly  admitted  in  principle,  and  the  last  was 
confirmed  by  frequent  exercise/'  f  They  also  claimed 
and  maintained  a  right  to  appropriate  to  special  pur- 
poses the  supplies  which  they  granted  to  the  king ;  and 
by  the  impeachment  of  the  Earl  of  Suffolk,  Richard's 
favourite  minister  in  1386,  they  confirmed  their  right 
of  wielding  that  formidable  but  necessary  weapon 
against  the  ministers  of  the  royal  will.  The  attempt 
made  by  the  king  in  1398,  to  obtain  a  packed  House 
of  Commons  deserves  notice,  as  a  royal  confession Tt hat 
it  was  necessary  to  rule  the  nation  through  a  parlia- 
ment. The  temporary  triumph  which  the  king  ob- 
tained by  this  device,  was  soon  followed  by  his  over- 
throw and  deposition ;  and  thenceforth  a  free  parliament 
became  the  popular  cry  when  the  common  liberties 
were  supposed  to  be  in  danger.  J 

The  princes  of  the  House  of  Lancaster,  conscious 
that  they  reigned  rather  by  the  people's  choice  than 
by  any  lineal  title  to  the  Crown,  did  not  venture  OD 


Gnizot.  t  Hallam's  "  Middle  Ages,"  voL  iii.  p.  124. 

"Penny  Cyclopaedia,"  an.  "Borough." 


224  RISE   AND   PROGRESS 

any  open  resistance  to  the  powers  which  the  Lowei 
House  of  parliament  had  obtained,  and  they  regularly 
held  a  parliament  in  almost  every  year.  Some  arbi- 
trary acts  on  the  part  of  the  Crown  may  be  found  dur- 
ing their  reigns,  but  they  are  far  less  numerous  than 
had  formerly  been  the  case,  and  are  clearly  exceptional 
to  the  regular  course  of  government.  Even  Henry 
X..;  in  the  zenith  of  his  glory  and  popularity,  never 
ventured  to  slight  the  authority  of  parliament  in 
granting  supplies  in  general  legislation,  and  in  par- 
ticipating in  the  administration  of  affairs.  As  the 
noble  and  learned  historian  of  "  England  and  France 
under  the  House  of  Lancaster"  observes,*  "What- 
ever money  was  raised  by  taxes,  Henry  owed  en- 
tirely to  their  votes  ;  and,  as  the  intoxication  into 
which  his  victories  threw  them  along  with  the  coun- 
try, never  tempted  him  to  encroach  upon  their  func- 
tions, so  he  showed  his  sense  of  their  power  by  letting 
their  chagrin  at  his  only  disaster  pass  away  before  he 
asked  for  any  aid  to  re-establish  his  fortunes.  An 
important  change  in  the  financial  system  was  intro- 
duced in  his  time,  and  it  showed  in  a  striking  manner 
the  ascendancy  of  the  parliament,  for  it  was  entirely 
of  parliamentary  creation, — I  mean  the  practice  of 
pledging,  as  a  security  for  loans  made  to  the  Crown, 
Duties  already  granted/* 

Our  parliaments  under  the  House  of  Lancaster, 
besides  maintaining  the  rights  which  had  been  ac- 
quired by  their  predecessors,  established  others  of  great 
importance.  At  least  it  is  in  the  records  of  that 
period  that  we  first  obtain  definite  proof  of  them. 
Hallam  cites  at  length  f  a  remarkable  passage  from 
the  Bolls  of  Parliament  of  9th  Henry  IV.,  which 


*  P.  236. 

f  3  "  Middle  Ages,"  p.  102  ;  see,  also,  Guizot's  "  History  of  Represtn* 
tative  Government,"  part  ii.  lect.  25. 


OF   THE   CONSTITUTION.  225 

shows  the  recognition  of  two  important  constitutional 
principles  ;  namely,  1st,  that  all  money  bills  must 
originate  in  the  House  of  Commons  ;  and  2ndly,  the 
right  of  the  Houses  that  the  king  should  take  no 
cognizance  of  the  subject  of  their  deliberations  until 
they  had  come  to  a  decision  upon  it,  and  brought  that 
decision  regularly  before  him. 

With  respect  to  the  first  of  these  two  points  it 
may  be  further  remarked,  that,  in  the  earliest  parlia- 
ments, the  regular  course  was  for  all  statutes  to  orig- 
inate in  the  proceedings  of  the  House  of  Commons. 

The  Commons  used  to  petition  the  Crown,  and 
the  king,  on  their  petition,  and  by  the  advice  of  the 
Lords,  used  to  enact.  By  ancient  custom  the  king 
used  to  reply  to  all  the  petitions  of  the  Commons  at 
the  end  of  the  session  ;  and  statutes  founded  on 
petitions  that  were  sanctioned  by  the  Lords  and  grant- 
ed by  the  Crown,  were  afterwards  drawn  up  by  the 
king's  officers.  Frequent  frauds  were  committed  by 
those  functionaries,  who  did  not  faithfully  reproduce 
in  the  statutes  the  petitions  out  of  which  they  had 
originated.  The  Commons  continually  complained 
of  this  trickery  ;  but  at  last,  in  Henry  VI/s  time, 
they  began  to  guard  effectually  against  it,  by  prepar- 
ing bills  in  their  own  House  in  the  form  of  complete 
statutes,  which  they  sent  up  to  the  House  of  Lords, 
that  they  might  be  discussed  in  that  assembly,  and, 
if  adopted  there,  be  presented  to  the  king,  who  then 
had  nothing  more  to  do  than  to  give  or  refuse  his 
sanction.  No  precise  date  can  be  named  when  the 
House  of  Lords  began  to  originate  bills  in  their  own 
House,  which  were  sent  thence  to  the  Commons. 
But  the  custom  soon  grew  up  ;  and  it  became  the 
rule  of  parliament  that  bills  may  commence  in  either 
House,  except  money  bills,  which,  as  we  have  seen, 
must  come  from  the  Commons. 

The  essential  right  of  freedom  of  debate  is  tc 

" 


226  BISE   AND   PROGRESS 

Borne  extent  involved  in  the  second  principle  of  pai- 
liamentary  law,  which  has  been  mentioned  as  solemnly 
recognized  in  the  ninth  year  of  Henry  IV.  There  is. 
however,  no  point  of  parliamentary  privilege  which 
the  Crown  conceded  to  the  Commons  more  unwil- 
lingly than  full  liberty  of  speech  ;  but  the  Commons 
felt  its  full  importance,  and  struggled  manfully  and 
perseveringly  to  secure  it.  An  attack  which  Richard 
II.,  in  the  last  year  of  his  reign,  made  upon  Thomas 
Haxey,  a  member  of  the  Lower  House,  for  words 
spoken  in  debate,  was  no  slight  cause  of  the  popular 
indignation  by  which  that  misguided  prince  was  driven 
from  the  throne.  One  of  the  first  acts  of  Henry 
IV/s  first  parliament  was  to  annul  the  proceedings 
against  Haxey.  During  this  reign  we  find  the  Speak- 
er of  the  House  of  Commons  demanding  liberty  of 
speech  of  the  king  at  the  opening  of  every  session. 
Every  circumstance  proves  that  under  Henry  IV.  the 
Commons  used  greater  liberty  of  speech  than  they 
had  previously  enjoyed.  It  was,  indeed,  made  a  sub- 
ject of  special  praise  to  Sir  John  Tibetot,  Speaker  in 
the  parliament  of  1406.  The  king  soon  manifested 
great  distrust  of  the  extension  given  to  this  right, 
which  was  probably  exercised  with  some  of  the  rude- 
ness which  often  marked  the  manners  of  that  time.* 
In  1410,  hi  ;old  the  Commons  that  he  hoped  that 
they  would  no  longer  use  unbecoming  language,  but 
act  with  moderation.  In  1411,  the  Speaker,  Sir 
Thomas  Chaucer,  having  made  the  usual  demand  at 
tEe  opening  oi'  the  session,  the  king  replied  that  he 
would  allow  the  Commons  to  speak  as  others  before 
had  done,  but  that  "he  would  have  no  novelties 
introduced,  and  would  enjoy  his  prerogative."  The 
Speaker  requested  three  days  to  give  a  written  answer 
to  this  observation,  and  then  replied  "  that  he  desired 
no  other  protestation  than  what  other  Speakers  had 
made  ;  and  that  if  he  should  speak  anything  to  the 


OF   THE   CONSTITUTION.  227 

king's  displeasure,  it  might  be  imputed  to  his  own 
ignorance  only,  and  not  to  the  body  of  the  Commons," 
which  the  king  granted. 

We  hear  of  no  infringement  upon  the  liberty  of 
speech  enjoyed  by  the  Commons  until  the  parliament 
of  1455,  at  which  time  a  deputy  from  Bristol,  Thomas 
Young,  complained  that  he  had  been  arrested  and 
imprisoned  in  the  Tower,  six  years  before,  on  account 
of  a  motion  which  he  had  brought  forward  in  the 
House.  The  object  of  this  motion  had  been,  to  de- 
clare, that  as  the  king  then  had  no  children,  the  Duke 
of  York  was  the  legitimate  heir  to  the  throne.  The 
Commons  transmitted  this  petition  to  the  Lords,  and 
the  king  commanded  his  Council  to  do  whatever 
might  be  judged  fitting  on  behalf  of  the  petitioner.* 

Other  points  of  parliamentary  privilege,  such  as 
the  freedom  of  members  from  arrest,  first  attract  at- 
tention in  the  records  of  the  Lancastrian  reigns  ;  but 
with  regard  to  one  very  important  matter,  the  right 
to  investigate  and  determine  contested  elections,  the 
Commons  were  as  yet  unarmed.  The  judgment  of  elec- 
tion disputes  was  exercised  by  the  king  and  his  Coun- 
cil.  And  it  was  at  this  epoch  that  it  was  solemnly 
declared  that  the  Commons  had  no  share  in  the  gen- 
eral judicial  functions  of  parliament.  This  declara- 
tion was  made  in  1399,  at  the  suggestion  of  the 
Commons  themselves,  and  by  the  mouth  of  the  Arch- 
bishop of  Canterbury,  who  said  :  "  That  the  Commons 
were  only  petitioners,  and  that  all  judgment  belonged 
to  the  king  and  Lords  ;  unless  it  was  in  statutes, 
grants  of  subsidies,  and  such  like."  Since  this  period 
the  Commons,  when  they  desired  to  interfere  in  judg- 
ments otherwise  than  by  impeachment,  were  obliged 
to  employ  the  means  of  bills  nf_attainder.  They 


*  Guizot's  "  History  of  Representative  Government,"  part  ii.  lect.  2& 


228  EISE   AND    PROGRESS 

adopted  this  plan  in  the  case  of  the  Duke  of  Suffolk 
in  1450,  and  very  frequently  afterwards.* 

The  Lancastrian  period  of  our  parliamentary  his- 
tory is  peculiarly  remarkable  for  the  statutes,  which 
were  then  passed  respecting  elentinnp.  Besides  the 
immediate  subjects  which  they  deal  with,  they  bear 
strong  evidence  of  the  increasing  importance  of  the 
House  of  Commons,  and  of  the  anxiety  of  the  Crown 
to  influence  the  popular  assembly,  which  it  could  not 
with  safety  neglect  or  openly  control.  An  ancient 
statute  of  Edward  I.  ordains  that  elections  ought  to 
be  free,  and  forbids  the  disturbance  of  their  freedom.f 
And  in  the  fifth  year  of  Bichard  II/s  reign,  an  Act 

*  See  Guizot,  ut  si/pra,  lect.  25.  The  following  observations  of  Mr. 
May,  on  bills  of  attainder,  deserve  attention  ! — "  The  proceedings  of  par- 
liament in  passing  bills  of  attainder,  and  of  pains  and  penalties,  do  not 
vary  from  those  adopted  in  regard  to  other  bills.  They  may  be  intro- 
duced into  either  House ;  they  pass  through  the  same  stages  ;  and,  when 
agreed  to  by  both  Houses,  they  receive  the  royal  assent  in  the  usual  form ; 
but  the  parties  who  are  subjected  to  these  proceedings  are  admitted  to 
defend  themselves  by  counsel  and  witnesses  before  both  Houses ;  and  the 
solemnity  of  the  proceedings  would  cause  measures  to  be  taken  to  enforce 
the  attendance  of  members  upon  their  service  in  parliament.  In  evil  times, 
this  summary  power  of  parliament  to  punish  criminals  by  statute  has  been 
perverted  and  abused  ;  and  in  the  best  of  times  it  should  be  regarded  with 
jealousy ;  and  whenever  a  fitting  occasion  arises  for  its  exercise,  it  is 
undoubtedly  the  highest  form  of  parliamentary  judicature.  In  impeach- 
ments, the  Commons  are  but  accusers  and  advocates  ;  while  the  Lords 
alone  are  judges  of  the  crime.  On  the  other  hand,  in  passing  bills  of  at- 
tainder the  Commons  commit  themselves  by  no  accusations,  nor  are  their 
powers  directed  against  the  offender ;  but  they  are  judges  of  equal  juris- 
diction and  with  the  same  responsibility  as  the  Lords ;  and  the  accused 
can  only  be  condemned  by  the  unanimous  judgment  of  the  Crown,  the 
Ix>rds  and  the  Commons."  The  principle  which  Mr.  Raikes  lays  down  in 
the  2nd  volume  of  his  work  the  "  Constitution,"  seems  to  me  a  just  one. 
"  There  can  be  little  doubt  of  the  competence  of  any  community  to  pun- 
ish great  offences  against  itself  by  a  retrospective  national  act.  Such  a 
right  would  seem  to  flow  from  the  principle  of  national  independence,  but 
should  not  be  extended  to  capital  punishments.  A  community  may  ex- 
ercise the  right  of  separating  from  itself  any  peccant  member,  but  such 
right  does  not  extend  to  separate  such  member  from  the  whole  human 
race,  save  for  such  conduct  as  would  be  universally  punished." — P.  73. 

t  Statute  of  Westminster  the  First,  c.  v. ;  see  Reeve,  "  Hist.  Law  * 
e-  iv. 


OF   THE   CONSTITUTION  229 

passed  to  punish  sheriffs  who  were  negligent  in 
making  returns  of  parliamentary  writs,  or  who  left 
out  of  the  returns  any  cities  or  boroughs  which  were 
bound,  and  formerly  were  wont,  to  send  members  to 
parliament.  With  these  exceptions,  and  some  few 
other  unimportant  ones,  it  is  in  the  reigns  of  the 
Fourth,  Fifth,  and  Sixth  Henrys  that  we  first  find 
the  important  subject  of  the  election  and  return  of 
members  become  an  object  of  earnest  legislative  at- 
tention. 

It  is  to  be  remembered,  that  the  great  instruments 
of  the  Crown,  in  packing  a  House  of  Commons,  were 
the  sheriff^  who  were  nominated  by  the  king.  When 
a  parliament  was  convened,  it  was  to  these  officers 
that  the  royal  precept  was  addressed  for  the  election 
of  knights,  citizens,  and  burgesses.  The  king's  writ 
required  that  two  knights  should  be  elected  for  the 
county,  and  that  the  sheriff  should  cause  to  be  elected 
two  citizens  for  each  city,  and  two  burgesses  for  each 
borough  in  his  bailiwick.  As  no  particular  cities  and 
boroughs  were  specified,  the  sheriffs  assumed  a  discre- 
tionary power  as  to  what  places  they  would  consider  fit 
cities  and  boroughs  to  return  members  to  parliament ; 
and  this  power  was  often  grossly  abused  by  those 
functionaries,  who  omitted  or  included  boroughs  most 
fraudulently  and  irregularly.  This  wholesale  garbling 
of  parliamentary  representation  was  checked  by  the 
statute  of  Eichard  II.,  which  has  been  referred  to  ; 
but  the  sheriffs  still  had  the  power  of  influencing  the 
elections  and  falsifying  the  returns  of  individual  mem- 
bers, especially  of  knights  of  the  shire,  as  these  were 
elected  in  the  county  court,  at  which  the  sheriff  him- 
self presided.*  This  power  was  frequently  used  by 

*  A  practice  was  attempted  at  one  time  to  have  the  hurgesses  elected 
lit  the  county  court  by  delegates  from  the  boroughs.  See  Hallam,  p. 
116,  and  note  to  p.  117;  and  see  "Penny  Cyclopaedia,"  Boroughs,  p 
188. 


230  RISE   AND   PEOGRESS 

them  at  the  instigation  of  the  Crown,  or  of  great 
noblemen,  or  for  private  ends  of  their  own.  Kichard 
II.  had  largely  availed  himself  of  this  dishonest  en- 
gine in  packing  the  House  of  Commons  which  he 
brought  together  two  years  before  his  deposition. 
The  parliaments  of  his  successor  strove  vigilantly  to 
prevent  such  malpractices  for  the  future.  The  statute 
of  the  jrth  Henry  IV.  was  passed  "  on  the  grievous 
complaints  of  the  Commons  against  undue  elections 
for  shires."  It  contained  regulations  for  the  time  and 
manner  of  the  election  of  knights  ;  and,  among  other 
things,  ordained  that  all  those  who  should  be  present 
at  the  county  court,  as  well  suitors  duly  summoned 
for  that  cause  as  others,  should  enter  upon  the  election 
of  knights  ;  and  then  in  full  court  they  were  to  pro- 
ceed freely  and  indifferently,  notwithstanding  any  re- 
quest or  command  to  the  contrary.  The  importance 
of  this  clause,  with  respect  to  the  question  of  how  far 
the  elective  franchise  extended,  will  be  hereafter  con- 
sidered. The  statute  also  contained  several  clauses  to 
yecure  a  true  return  by  the  sheriff  of  the  result  of 
the  election  ;  and  by  an  Act  passed  four  years  after- 
wards, severe  penalties  were  imposed  for  any  breach 
of  its  provisions. 

Notwithstanding  these  enactments,  the  king's  min- 
isters, especially  during  the  early  part  of  Henry  VI/s 
reign,  continued  their  attempts  to  influence  elections  ; 
and  used  for  this  purpose  not  only  the  agency  of  the 
sheriffs,  but  that  also  of  the  mayors  and  other  officers 
of  the  cities  and  boroughs.  It  was  during  this  period 
that  a  change  in  the  character  of  our  municipal  insti- 
tutions was  commenced,  which  will  be  presently  de- 
scribed ;  a  change  that  made  them  more  open  than 
before  to  the  influence  of  corruption  and  intimidation. 
The  parliament  sought  to  check  these  practices  in  the 
twenty-third  year  of  Henry  VI.,  when  it  was  enacted 
that,  under  peril  of  severe  penalties,  every  sheriff 


OF    THE   CONSTITUTION.  231 

should  deliver  a  proper  precept  to  the  mayor  or  bailiff 
of  each  city  or  borough  in  the  shire  to  elect  citizens 
or  burgesses  for  parliament  ;  that  the  mayors  and 
bailiffs  should  make  true  return  of  those  which  be 
chosen  by  the  citizens  and  burgesses  of  the  cities  or 
boroughs  where  such  elections  be  made. 

The  constitutional  history  of  the  reign  of  the 
Lancastrian  kings  is  also  very  important,  by  reason 
of  the  attempts  then  made  by  the  Legislature  to 
determine  the  qualifications  both  of  electors  and  of 
persons  to  be  elected.  It  has  been  seen,  that  the 
statute  7  Hen.  IV.  c.  15,*  while  guarding  against  the 
malpractices  of  sheriffs  in  county  elections,  recognized 
or  established  the  right  of  all  persons  who  were  pres- 
ent at  the  county  court  to  vote  for  knights  of  the 
shire.  But  in  the  eighth  year  of  Henry  VI.  was 
passed  an  Act  that  was  framed  in  a  very  different 
spirit.  This  remarkable  statute,  the  first  disfranchis- 
ing one  upon  record,  reciting  the  grievous  uproar  and 
Disorder  at  elections,  chiefly  occasioned  by  the  "  out- 
rageous and  excessive  number  of  people  of  small 
substance  or  no  value,"  enacted,  "  that  for  the  future 
knights  of  the  shire  shall  be  chosen  by  people  dwell- 
ing and  resident  in  the  counties,  whereof  every  one 
of  them  shall  have  free  land  or  tenement  to  the  value 
of  forty  shillings  by  the  year  at  least,  above  all 
charges."  This  was,  indeed,  a  most  stringent  enact- 
ment, operating  as  a  sweeping  disfranchisement  ;  for 
forty  shillings  then  were  equal  to  at  least  twenty  pounds 
of  the  present  day.  This  statute,  coupled  with  one 
passed  two  years  afterwards  (which  required  the  vo- 
ter's freehold  to  be  situate  in  the  county  for  which  he 
votes),  contains  the  basis  of  the  right  of  voting  for 
counties  ever  since,  regulated  from  time  to  time  by 
various  statutes  prescribing  the  requisite  length  of 

*  Supra,  p.  247. 


232  RISE    AND    PROGRESS 

possession,  or  receipt  of  rents  and  profits.  The  right 
was  "freehold,  free  land,  or  tenement,"  requiring 
both  the  tenure  and  the  interest  to  be  freehold,  conse- 
quently excluding  copyholders  and  leaseholders  for 
Hves.* 

It  will  be  observed,  that  this  statute,  besides  fix 
ing  a  property  qualification  for  voters  in  county  elec 
tions,  had  also  the  object  of  limiting  the  right  of  voting 
to  those  who  were  resi^eriig  in  the  county.  And 
another  part  of  the  same  statute  required,  "  that  they 
which  shall  be  so  chosen,  shall  be  dwelling  and  resi- 
dent within  the  same  counties."  It  had  been  endea- 
roured,  in  the  preceding  reign,  to  make  residence  a 
necessary  qualification  for  both  electors  and  elected,  in 
counties  and  in  boroughs.  The  first  statute  of  Henry 
V.  expressly  ordained  this.  Few  who  bear  in  mind 
the  origin  of  the  House  of  Commons,  will  hesitate  in 
believing  with  Mr.  Hallam,  that  the  old  custom  was, 
"  that  each  county,  city,  or  borough  should  elect 
deputies  out  of  its  own  body,  resident  among  them- 
selves, and  consequently  acquainted  with  their  neces- 
sities and  grievances."  Mr.  Hallam  thinks  it  likely 
that  the  practice  of  electing  non-residents  had  begun 
in  the  reign  of  Edward  III.  He  remarks  on  this 
statute  of  Henry  V.,  that  it  "  apparently  indicates  a 
point  of  time  when  the  deviation  from  the  line  of  law 
was  frequent  enough  to  attract  notice,  and  yet  so 
established  as  to  pass  for  an  unavoidable  irregularity. 
There  cannot  be  a  more  apposite  proof  of  the  ineffi- 
cacy  of  human  institutions  to  struggle  against  the 
Bteady  course  of  events,  than  this  unlucky  statute  of 
Henry  V.,  which  is  almost  a  solitary  instance  in  the 
law  of  England  wherein  the  principle  of  desuetude 


*  This  account  of  the  statute  8  Hen.  VI.  is  almost  entirely  taken  fron 
Mr.  Warren's  excellent  historical  introduction  to  his  "  Manual  of  Parlis 
Bientary  Law." 


OF    THE   CONSTITUTION.  233 

has  been  avowedly  set  up  against  an  unrespected  en* 
actrnent/'* 

The  provisions  of  the  1  Hen.  V.  c.  1,  the  8  Hen. 
VI.  c.  7,  10  Hen.  VI.  c.  2,  and  23  Hen.  VI.  c.  14, 
which  required  electors  to  be  residents  in  the  county  01 
borough  for  which  they  voted,  were  almost  equally 
inoperative  in  practice  ;  and  the  statute  of  14  George 
III.  c.  58,  which  at  last  formally  repealed  the  restric- 
tion of  residence  as  to  members,  repealed  the  clauses 
also  of  the  old  Acts  which  demanded  the  residence  of 
voters.  The  modern  statute  significantly  recites,  that 
certain  provisions  in  the  old  Acts  had  been  found  by 
long  usage  to  be  unnecessary  and  had  become  obso- 
lete ;  and  it  repeals  them  so  far  as  they  relate  to  the 
residence  both  of  candidates  and  voters.  It  is,  how- 
ever, probable  that  in  early  times  the  number  of  non- 
resident voters,  both  in  counties  and  in  boroughs, 
could  not  have  been  large.  With  respect  to  the 
county  voters,  the  requirement  of  the  10  Hen.  VI.  c. 
2,  that  the  land  which  gave  the  vote  should  be  situate 
within  the  county,  was  always  obeyed  ;  and  it  is  not 
likely  that  any  great  number  of  persons,  in  the  time 
of  the  Plantagenets,  were  owners  of  freehold  property 


*  Mr.  Hallam  refers  to  a  note  (Note  D)  at  p.  53  of  Peckwell's  Reports 
of  Contested  Elections."  The  whole  subject  is  there  very  learnedly  and 
fully  investigated.  The  restrictions  of  the  statute  seem  to  have  been 
generally  evaded  as  early  as  Edward  IV. 's  reign.  An  unsuccessful  at- 
tempt was  made  in  the  thirteenth  year  of  Elizabeth's  reign  formally  to 
repeal  the  Act,  as  regarded  boroughs.  But  though  this  failed,  non-resi- 
dents seem  to  have  been  continually  returned  both  for  counties  and 
boroughs;  and  at  last,  in  the  case  of  Onslow  v.  Ripley,  1781,  the  Court 
of  King's  Bench  resolved  that  "  little  regard  was  to  be  had  to  that  ancient 
statute,  1  Hen.  V.,  because  the  common  practice  of  the  Idngdom  had  been  ever 
since  to  the  contrary"  Some  legal  authorities  try  to  get  rid  of  the  difficulty 
of  treating  the  neglect  of  a  statute  as  equivalent  to  the  repeal  of  it,  by 
drawing  a  distinction  between  such  statutory  provisions  as  are  imperative, 
and  such  as  are  directory  only  and  may  be  disregarded.  See  Dwarris  on 
Statutes,  606,  et  seq.  Our  jndges  of  late  years  have  shown  a  commend- 
able unwillingness  to  exercise  this  dangerous  discretion  in  dealing  witlj 
the  Acts  of  the  Legislature. 


234  EISE    AND    PROGRESS 

in  counties  in  which  they  did  not  reside.  With  re« 
epect  to  boroughs, a  there  is  little  doubt  but  that 
originally  a  man  must  have  been  a  resident,  and  must 
have  been  a  member  of  the  court  leet  of  the  borough, 
in  order  to  be  recognized  as  a  burgess.  Afterwards 
the  practice  grew  up  in  many  boroughs  of  admitting 
non-residents  as  burgesses.  This  does  not  date  earlier 
than  Henry  VI/s  reign,  when  boroughs  were  first  in- 
corporated, f  In  after  times  (down  to  the  passing  of 
the  Reform  Bill  of  1832),  the  question  whether  non- 
residents could  vote  in  borough  elections  was  decided 
by  the  words  of  the  incorporating  charter,  or  by  proof 
of  the  custom  of  each  place. 

Another  point  of  considerable  interest  is  suggested 
by  a  persual  of  the  old  Act,  23  Hen.  VI  c.  14,  with 
respect  to  elections,  independently  of  the  question  of 
residence.  This  is,  whether  any  qualification  of  birth 
or  estate  was  necessary  for  a  membpj-  of  parliament 
in  those  early  times.  With  regard  to  boroughs,  this 
does  not  seem  to  have  been  the  case  before  the  cele- 
brated statute  of  the  ninth  year  of  Queen  Anne's 
reign  ;  except  that  it  may  be  safely  assumed  that  a 
villein  would  not  have  been  eligible  ;  and,  indeed,  the 
1  Hen.  V.  c.  11,  requires  that  the  chosen  burgesses 
shall  be  free.  With  respect  to  representatives  of 
counties,  the  case  is  different.  They  were  (as  we  have 
seen)  originally  the  representatives  of  the  mass  of  the 
immediate  military  tenants  of  the  Crown  ;  they  were 
always  (and  still  are)  described  in  the  parliamentary 
writs  as  knights  ;  and  there  can  be  no  question  but 
that  originally  knights  only  were  chosen.  By  degrees 
the  practice  of  the  voters  and  the  sheriffs  in  this 
respect  became  less  strict  ;  and,  at  least  as  early  aa 
Edward  III.'s  reign,  many  persons  who  were  not 


*  See  Merewcther  and  Stephens  on  Borough*         f  See  Ibid. 


OF    THE    CONSTITUTION.  235 

knights,  sat  in  the  House  of  Commons  as  knights  of 
ehires.* 

The  statute  of  Henry  VI  's  reign,  to  which  we  are 
referring  (23.  c.  14.  3.  ),  though  it  sanctioned  the 
return  of  representatives  of  counties  who  were  not 
actually  knights,  endeavoured  to  impose  a  twofold 
qualification  of  birth  and  estate.  It  required  that 
knights  of  the  shires  for  parliament  shall  be  notable 
knights  of  the  same  counties  for  which  they  shall  be 
chosen,  or  otherwise  such  notable  esquires,  gentlemen 
lorn,  of  the  same  counties,  as  shall  be  able  to  be 
knights,  and  no  man  to  be  such  knight  as  standeth  in 
the  degree  of  a  yeoman  or  under.f  A  knight's  fee, 
that  is  to  say,  the  amount  of  land  which  made  its 
owner  eligible  for  knighthood,  was  worth,  in  Edward 
II.'s  reign,  £20  a  year,  which  is  equivalent  to  at  least 
£300  a  year  of  the  present  time.  The  property 
qualification,  therefore,  which  it  was  thus  sought  to 
establish,  was  considerable  ;  but  the  attempt  to  found 
a  qualification  of  gentle  birth  was  more  important 
still ;  for,  if  successful,  it  would  have  gone  far  to 
make  a  distinction  of  caste  among  the  commonalty 
of  England,  and  to  impair  that  equality  in  the  eye 
of  the  law,  which  has  so  beneficially  prevailed  in  this 
nation.^  One  instance  is  recorded  in  which  this  very 
aristocratic  provision  of  the  statute  was  appealed  to. 
This  was  six  years  after  it  was  passed.  Some  of  tin 
electors  of  Huntingdonshire,  in  the  twenty-ninth  year 
of  Henry  VI.,  petitioned  the  king  against  the  election 
of  one  Henry  Gimber,  because  (among  other  reasons) 

*  3  HalL  "  Mid.  Ag.,"  p.  176 ;  1  Douglas  "  Election  Cases,"  p.  451,  note 
D  ;  3  Prynne  "Reg.  Brev.,"  167. 

+  Issint,  que  lez  chivalerg  des  counteez  pour  le  parlement  soien  nota- 
b.'ez  chivalers  des  mexmez  lez  counteez  ou  autrement  tielx  notablez  Es- 
quiers  geidils  homez  del  Nativite  dez  mezmez  lez  counteez  come  soient  ablez 
destre  Chivalers :  et  null  home  desire  tiel  chivaler  que  estoise  en  la  degree 
de  vadlet  et  desouth. — Statutes  of  the  Realm,  vol.  ii.  p.  342. 

J  See  178,  supra. 


236  RISE    AND    PROGRESS 

he  was  not  of  gentle  birth.*  But  this  part  of  the 
statute  appears  to  have  been  so  generally  disregarded, 
as  not  even  to  have  attracted  notice  enough  in  aftei 
times  to  obtain  a  repeal. 

The  natural  influence  of  ancient  lineage  and  land- 
ed property  must  generally  have  caused  the  repre- 
sentatives of  each  county  to  be  chosen  from  among 
its  principal  gentry,  but  no  impassable  barrier  of  pedi- 
gree excluded  others  ;  nor,  until  the  reign  of  Anne, 
was  any  property  qualification  indispensable. 

There  is  no  surer  proof  of  the  growing  importance 
of  the  House  of  Commons  during  the  latter  half  of 
the  fifteenth  century,  than  the  anxiety  which  was 
then  beginning  to  be  shown  to  obtain  a  seat  in  parlia- 
ment. Formerly  that  post  had  been  looked  on  as  a 
burden,  and  it  had  been  found  requisite  to  impose  a 
fine  by  statute  on  members  who  absented  themselves 
from  their  duty.  The  electors  also  looked  on  their 
franchise  as  a  grievance,  inasmuch  as  it  imposed  on 
them  the  necessity  of  paying  wages  to  their  represen- 
tatives. The  excuse  that  a  borough  was  too  poor  to 
raise  the  money  to  pay  their  burgesses  in  parliament 
was  often  set  up,  and  often  allowed  by  the  sheriffs. 
Both  county  and  borough  members  seem  regularly  to 
have  received  their  wages  to  the  end  of  Henry  VIII.'s 
reign,  and  a  few  later  instances  have  been  found.f 
But  there  is  good  evidence  that,  during  the  reigns  of 
the  last  Plantagenets,  country  gentlemen  and  others 
had  begun  to  make  eager  canvass  for  places  in  parlia- 
ment. Mr.  Hallam  cites  from  the  Paston  Collection 
a  curious  letter  on  this  subject,  which  also,  as  he 
states,  throws  light  on  the  creation  or  revival  of  bor- 
oughs. The  writer  tells  Sir  John  Paston,  "  If  ye 
miss  to  be  burgess  of  Maiden,  and  my  lord  chamber- 

*  See  the  proceedings  in  Prynne's  3rd  Register,  p.  157. 
t  See  Hall.  3  "Mid.  Ag.,"  p.  171,  note;  and  Prynno'a  4th  Register, 
HB  there  cited. 


OF    THE  CONSTITUTION.  237 

lain  will,  ye  may  be  in  another  place  ;  there  be  a 
dozen  towns  in  England  that  choose  no  burgess,  which 
ought  to  do  it;  ye  maybe  set  in  for  one  of  those 
towns  an  ye  be  friended/'  The  date  of  this  let- 
ter is  1472,  in  the  reign  of  Edward  IV.  It  may 
bo  observed,  that  one  effect  of  the  wars  of  the  Boses, 
which  had  raged  between  this  date  and  that  of  the 
statute  of  Henry  VI.,  which  we  last  referred  to,  had 
been  to  raise,  in  some  respects,  the  importance  of  the 
House  of  Commons  ;  as  each  of  the  contending  par- 
ties eagerly  sought  the  sanction  of  parliament  to  its 
title,  and  still  more  eagerly  used  the  machinery  of 
parliamentary  attainders  against  its  adversaries. 

Notwithstanding  the  strong  and  steady  growth  of 
parliamentary  authority,  which  may  be  traced  during 
the  fourteenth  and  fifteenth  centuries,  a  king  of  Eng- 
land still  possessed  many  and  splendid  attributes, 
that  were  strictly  constitutional ;  arid  even  the  best 
of  OUT  monarchs  frequently  committed  acts  of  arbi- 
trary power  beyond  the  limits  of  the  constitution, 
under  the  colour  of  royal  prerogative.  But,  without 
trespassing  on  the  supremacy  of  the  law,  the  royal 
power  was  ample  for  all  purposes  that  could  truly 
benefit  either  prince  or  people.  The  king  convened, 
and  the  king  dissolved  the  parliament.  The  king 
could  add  at  his  will  new  members  to  its  Upper 
House,  by  creating  peers.  The  king  could  grant  his 
royal  charter  to  any  place  he  pleased  to  select,  and 
thereby  constitute  that  place  a  borough,  with  the  right 
of  sending  representatives  to  the  House  of  Commons. 
This  mode  of  influencing  parliament  was  indeed  little 
used  during  these  centuries,  comparatively  with  the  ex- 
tent to  which  it  was  put  in  force  by  the  Tudors  ;  and 
the  agency  of  the  sheriffs,  in  omitting  or  adding  bor- 
Dughs,  was  generally  employed  ;  but,  as  parliament 
succeeded  in  controlling  this  abuse,  we  find  the  Crown 
reviving  or  creating  parliamentary  boroughs  by  its 


238  RISE   AND   PROGRESS 

charters.  The  king's  concurrence  with  the  Houses 
was  essential  for  all  legislation,  and  his  power  of  refus- 
ing assent  to  their  petitions  or  bills  was  then  frequent- 
ly exercised.  Our  sovereigns,  also,  during  this  period, 
used  to  issue  ^ordinances,,  which  were  acknowledged  to 
be  binding,  and  the  boundaries  between  which  and 
regular  statutes  it  is  not  easy  to  define  ;  though  it 
may  be  generally  stated  that  an  ordinance  dealt  rather 
with  an  individual  case  than  a  general  subject,  and 
that  an  ordinance  was  designed  to  declare  and  enforce 
the  law  as  it  already  existed,  whereas  the  introduction 
of  a  new  law  required  a  statute.*  Sometimes  ordi- 
nances were  issued  by  the  sovereign,  on  petition  from 
parliament ;  but  they  were  also  frequently  made  by 
the  king  in  Council,  without  any  parliamentary  au- 
thority. This  was  the  king's  "  Concilium  Ordina- 
rium,"  or  Privy  Council,  consisting  of  the  chancellor, 
the  treasurer,  the  lord  steward,  lord  marshal,  lord 
admiral,  of  the  judges,  and  of  other  high  officers  of 
State,  all  nominated  by  the  king,  and  all  removable 
at  his  pleasure.  This  Council  claimed  also  and  exer- 
cised an  anomalous  judicial  authority,  which  was  the 
constant  subject  of  parliamentary  remonstrance,  but 
which  the  frequent  turbulence  of  the  times,  and  the 
insufficiency  of  the  ordinary  tribunals  to  deal  with 
powerful  offenders,  must  have  rendered  to  some  extent 
necessary.  Another  important  power  which  was  ad- 
mitted in  those  days  to  belong  to  the  crown,  was 
that  of  dispensing  with  the  observance  of  particular 
statutes  T>y  particular  individuals  in  special  cases. 
This,  probably,  was  regarded  as  springing  from  the 
clear  royal  right  of  pardoning  offenders.  For  it  must 
have  seemed  natural  that  if  the  king,  when  a  statute 
had  been  broken,  could  pardon  the  offence,  he  might, 
by  a  kind  of  anticipatory  pardon,  dispense  with  its 

*  See  Reve,  vol.  iii.  p.  358.     3  Hall.  "  Mid.  Ag.,"  p.  138,  et  seq. 


OF   THE   CONSTITUTION.  239 

observance  in  a  special  instance.  As  has  been  stated 
in  speaking  of  the  Council,  the  king  appointed  and 
changed  as  he  thought  fit,  the  chancellor,  the  judges 
of  the  supreme  common  law  courts,  and  the  judges 
who  tried  causes  and  prisoners  on  the  circuit,  who 
were  not  always  the  same  as  the  judges  of  Westmin- 
ster Hall.  He  appointed  the  sheriffs,  and  he  appoint- 
ed also  and  dismissed  as  he  thought  fit  the  holders 
of  the  very  important  office  of  justice  of  the  peace  in 
the  several  counties.  There  had  anciently  been  in 
each  shire  conservators  of  the  peace,  elected  by  the 
freeholders  ;  but  in  Edward  III/s  reign  these  were 
superseded  by  justices  of  the  peace,  receiving  their 
appointment  and  commission  from  the  Crown. 

The  king,  as  supreme  head  of  the  State,  represent- 
ed the  State  ;  or  rather  the  king  was  the  State  in 
all  dealings  with  other  nations.  He  proclaimed  war, 
he  made  treaties  ;  he  alone  sent  or  received  ambassa- 
dors ;  he  was  supreme  chief  of  the  military  and  naval 
forces  of  the  kingdom  ;  he  had  the  absolute  government 
of  all  foreign  towns  or  territories  that  were  obtained 
by  conquest  ;  he  had  the  government  of  all  forts  and 
castles  within  the  realm  ;  nor  could  any  subject  em- 
battle his  house  or  make  a  place  of  strength  without 
the  royal  licence.  Many  other  prerogatives  of  minor 
importance,  such  as  that  of  coining  money,  of  confer- 
ring all  titular  ranks  and  honours,  of  appointing  ports 
and  havens  for  the  lawful  transit  of  merchandise,  and 
passengers  into  and  out  of  the  realm  ;  and  several  of 
a  fiscal  nature,  such  as  the  right  to  deodands,  and  to 
waifs,  and  wrecks  of  the  sea,  might  be  mentioned. 
But  the  principal  powers  of  royalty  have  been  enu- 
merated, and  they  prove  abundantly  the  splendour 
and  the  strength  of  the  constitutional  sceptre  of  our 
Plantagenet  kings. 

The  constitutional  privileges  of  the  peers  have 
been  sufficiently  pointed  out  in  the  preceding  pages 


240  RISE   AND   PROGRESS 

When  we  come  to  consider  the  share  of  political  pow- 
ei  possessed  by  the  various  classes  of  the  mass  of  the 
nation,  who  collectively  constitute  the  commonalty  of 
the  realm,  the  point  that  first  fixes  our  attention  is  the 
elective  franchise.  We  have  already,  in  some  degree, 
investigated  this  ;  and  there  is  no  need  to  recapitulate 
the  old  statutory  provisions  that  have  been  quoted, 
with  reference  to  the  qualifications  of  electors,  and 
also  of  members.  But  it  is  interesting  to  ascertain, 
if  possible,  the  relative  proportion  of  the  whole  elec- 
toral body  to  the  whole  nation,  and  to  ^gain  some 
insight  into  the  practical  working  of  the  representa- 
tive system  in  those  ages. 

We  shall  find  nothing  approaching  to  universal 
suffrage.  The  labouring  part  of  the  agricultural  pop- 
ulation was,  certainly,  during  the  fourteenth  and  fif- 
teenth centuries,  generally  raised  from  a  state  of 
villeinage  to  a  state  of  personal  freedom.  The  pro- 
cess of  emancipaiiiili  went  on  rapidly  during  Edward 
III/s  reign,  though  the  fearful  insurrection  in  that 
of  his  successor  shows  how  many  unhappy  beings  wsre 
then  still  in  a  state  of  bondage.  After  that  period 
we  hear,  by  degrees,  less  and  less  of  villeinage  in 
England  ;  and  it  was  generally  extinct  when  the  Tu- 
dor dynasty  came  to  our  throne,  though  a  few  instan- 
ces of  it  may  be  traced  later.  But  the  lot  of  the 
^jEEtLJa^™1  v*iE3  in  England  was  long  one  of  severe 
oppression.  The  statute  book,  from  Edward  III.'s 
reign  to  the  commencement  of  our  modern  poor- 
laws,  in  Elizabeth's  time,  abounds  in  enactments  to 
regulate  the  wages,  dress,  and  conduct  of  the  inferior 
labourers,  "  which  seem  to  have  been  framed  with  the 
same  view,  namely,  to  curb  the  aspiring  exertions  of 
industry  and  independency."*  Mr.  Pashley,f  in  his 


*  Eden's  "  State  of  the  Poor,"  vol.  i.  p.  42. 

•f  Pashley  on  "Pauperism  and  Poor  Laws,"  p.  163. 


OF   THE   CONSTITUTION.  241 

excellent  sketch  of  "  Pauper  Legislation  before  the 
Reign  of  Elizabeth,"  truly  says  : — 

"  Wearisome  and  painful  would  be  the  task  of 
examining  the  oppression  exercised  over  the  whole 
class  of  labourers  from  the  early  part  of  the  fourteenth 
contury  till  the  end  of  the  fifteenth.  The  legislation  on 
the  subject  of  these  poor  helots  seems  throughout  to 
be  selfish  and  unjust.  The  labourer  was  never  to  bet- 
ter his  condition.  Imprisonment  and  branding  on 
the  forehead  with  a  hot  iron  was  the  lot  of  the  fugi- 
tive servant,  although  he  had  never  consented  to  enter 
into  the  service  of  his  lord,  and  had  been  compelled 
to  do  so  for  wages  less  than  he  was  justly  entitled  to 
receive.  Even  'artificers,  and  people  of  mysteries/ 
were  liable  to  be  pressed  by  the  lord  to  get  in  his 
harvest,*  and  if  a  poor  labourer's  unmarried  daughter 
of  eighteen  or  twenty  years  of  age,  had  been  '  required 
to  serve '  any  master,  she  must,  under  the  statutory 
provisions,  either  have  gone  into  the  service,  or  have 
been  committed  to  gaol  for  refusing.  No  child  could 
be  apprenticed  to  any  useful  craft,  unless  its  parents 
were  owners  of  land  yielding  a  certain  amount  of 
yearly  rent,  and  the  compulsory  service,  such  as  has 
been  described,  paid  for  by  a  rate  of  wages  below  the 
just  level,,  would  be  a  perpetual  cause  why  servants 
should  have  endeavoured  to  free  themselves  from  their 
bondage,  and  why  the  '  valiant  beggars/  of  whom  we 
read,  should  have  so  greatly  increased  throughout  the 
country." 

The  agricultural  populatioji  of  the  country  was 
many  times  more  numerous  than  the  town  population ; 
and  the  agricultural  labourers,  such  as  we  have  seen 
them  described,  were  probably  a  majority  of  the  whole 
nation  ;  a  wretched  majority — among  whom  it  would 
be  idle  to  look  for  either  holders  of  franchise  or  bearers 


*  13  Rich.  II.,  c.  3. 

11 


242  RISE   AND   PROGRESS 

of  office.  When  we  come  to  the  rural  classes  above 
them,  to  the  possessors  of  some  property,  small  or 
great,  there  is  reason  to  believe  that  before  Henry 
VI.'s  time  the  right  of  voting  for  knights  of  the  shire 
was  very  generally  exercised.  For  by  far  the  greater 
proportion  of  those  who  then  had  any  landed  property 
at  all,  held  it  as  freeholders,*  and  even  after  the  8th 
Hen.  VI.  restricted  the  county  franchise  to  40s.  free- 
holders, the  number  still  qualified  to  vote  was  greater 
than  we  might  suppose,  did  we  not  know  from  Fortes- 
cue  f  and  other  authorities  how  large  was  the  number 
of  men  worth  at  least  40s.  a  year  in  every  English 
county. 

The  same  property  qualification  was  required  for 
jurnrs  as  for  county  voters  in  Fortescue's  time.  His 
writings,  especially  his  treatise  on  the  laws  of  Eng- 
land, present  a  most  interesting  and  valuable  picture 
of  the  political  and  social  state  of  England  towards 
the  latter  half  of  the  fifteenth  century.  He  was  Lord 
Chancellor  to  Henry  VI.,  and  was  the  companion  in 
exile  of  the  young  prince  Edward  of  Lancaster,  Hen- 
ry's son  and  heir  apparent,  during  the  wars  of  the 
Roses.  His  treatise  on  the  laws  of  England  was 
written  for  the  instruction  of  that  prince  ;  and  in  it 
he  described  trial  by  jury  as  the  prevailing  mode  of 
trial  in  England,  and  as  the  peculiar  glory  of  our 
institutions,  compared  with  those  of  other  nations. 
There  is  also  a  curious  record  of  Edward  the  Fourth's 
reign,  which  proves  how  completely  trial  by  jury  was 
then,  and  long  had  been,  regarded  as  an  Englishman's 
constitutional  privilege.  "  The  rolls  of  parliament 


*  Leases  for  years,  though  not  unknown,  were  comparatively  rare  to 
what  they  are  at  present ;  nor  was  the  stable  customary  possession  by 
freemen  of  land  held  of  lords  by  base  service  (f.  e.  of  copyholders)  fullj 
rciognised  till  Edw.  IVth's  reign,  if  so  early. 

t  Fortescue  de  Laudibus,  pp.  86,  104,  Amos's  edition 


OF  THE   CONSTITUTION.  243 

for  the  reign  of  Edward  the  Fourth,*  contain  a  peti- 
tion from  two  persons,  Henry  Bodrugan  and  Richard 
Bonethon,  praying  that  their  conviction  may  be  an- 
nulled^ An  Act  had  been  passed  in  the  14th  year 
of  that  reign,  which  authorized  the  justices  of  the 
King's  Bench  to  examine  Bodrugan  and  Bonethon  on 
a  charge  of  felony,  and  provided  that  if  the  said 
Henry  and  Richard  were  by  their  examination  found 
guilty,  they  then  should  have  such  judgment  and  exe- 
cution as  they  should  have  had  if  they  were  of  the 
same  attaint  by  the  trial  of  twelve  men,  and  like  for- 
feiture to  be  in  that  behalf.  The  accused  parties 
refused  to  appear,  and  were  convicted  by  default. 
They  therefore  petitioned  the  Crown  that  the  judg- 
ment might  be  annulled,  on  the  ground  that  a  triaj 
by  justices  in  this  mode  was  unknown  to  the  laws  of 
England,  and  was  a  novel  and  dangerous  innova- 
tion."!  The  very  words  of  the  petition  are — '  For  so 
much  as  by  the  same  Acte  was  ordeyned  that  the 
triall  of  the  said  offences  should  rest  and  be  by  exam- 
ination, and  not  by  the  verdict  of  twelve  men,  after 
the  common  course  of  the  laws  of  the  land.'  The 
king  granted  their  prayer,  and  thus  affirmed  the  prin- 
ciple of  the  indefeasible  right  of  the  subjects  of  this 
realm  to  be  tried,  as  they  have  heretofore  been  accus- 
tomed, by  a  jury  of  their  peers."§ 

When  we  direct  our  attention  to  the  trading  part 
of  the  community,  to  the  dwellers  in  towns  in  tnose 
ages,  we  find  reason  to  believe,  that,  at  least  in  all 
the  cities  and  more  considerable  boroughs,  by  far  the 
greater  number  of  the  inhabitants  had,  as  burgesses, 
the  right  of  voting  for  the  parliamentary  representa- 
tives of  the  borough,  the  right  of  acting  as  jurors  in 
the  borough  courts  of  justice,  and  generally  the  right 


*  Fortescue  de  Laudibus,  pp.  86,  104,  Amos's  edition. 

t  Rot  Purl.,  133.  i  Forsyth,  p.  426.  §  Forsyth,  p.  426. 


244  KISE  AND   PBOGEESS 

of  taking  active  part  in  matters  of  local  self-govern- 
ment. There  are  many  conflicting  theories  respecting 
the  early  municipal  constitutions  of  our  boroughs,  and 
as  to  the  class  of  persons  by  whom  the  electoral  fran- 
chise in  boroughs  was  originally  exercised.  The  four 
principal  conflicting  theories  on  the  subject  are  stated 
at  length,  and  their  respective  claims  to  our  adoption 
are  fairly  summed  up  by  Hallam.*  Sir  James  Mack- 
jntosjj  thought  that  from  the  earliest  times  to  which 
borough  voters  can  be  traced,  they  were  of  the  same 
variety  of  classes  as  in  later  times  before  the  Keform 
Bill.  "  In  some  places  the  freemen  ;  in  others,  the 
officers  of  a  corporation ;  elsewhere,  freeholders,  bur- 
gage  tenants,  inhabitants  contributing  to  public  ex- 
pense, or  other  inhabitants  with  scarcely  sufficient 
qualification  of  property  to  afford  a  presumption  of 
fixed  residency ;  these,  and  combinations  of  various 
sorts  of  them,  were  the  principal  classes  among  whom 
the  elective  franchise  was  in  the  earliest  times  shared." 
But  the  learned  researches  of  Serjeant  Merewether 
and  Mr.  Stephens  into  our  municipal  archaeology, 
seem  to  have  established  that,  at  least  before  Henry 
VI/s  reign,  every  freeman,  who  became  a  resident 
householder  in  a  borough,  capable  of  paying;  nnrtf  (i.  e. 
his  share  of  local  taxation),  and  pf  bearing  lot  (i.  e.  of 
discharging  in  turn  the  local  offices),  was  sworn  and 
enrolled  at  the  burough  leet,  and  became  a  burgess. 
The  boroughs  were  not  then  incorporated  ;  the  earliest 
instance  of  incorporation  being  in  the  eighteenth  year 
of  Henry  VI/s  reign,  when  a  charter  of  incorporation 
was  given  to  Hull.  This  was  followed  by  other 
instances  ;  and  our  courts  of  law  adopted  the  doc- 
trine, that  where  no  early  charter  of  incorporation 
could  be  proved,  an  early,  but  lost  one  would  be 
presumed  ;  in  other  words,  they  set  up  the  doctrine 

*  "  Constitutional  History." 


OF   THE   CONSTITUTION.  245 

of  incorporation  by  prescription.  The  mayor  and 
leading  men  of  the  corporations,  acting  by  the  corpo- 
rate seal,  and  as  the  whole  aggregate  body,  soon 
began  to  monopolize  authority,  and  to  exercise  the 
power  of  selecting  the  burgesses,  frequently  among  non- 
residents. The  Crown  also  began  to  grant  charters 
of  incorporation,  with  clauses  which  gave  exclusive 
powers  to  certain  officers  of  the  corporation,  or  to 
certain  select  bodies.  By  these  means,  and  by  the 
capricious  growth,  and  establishment  of  an  infinite 
variety  of  local  usages,  the  electoral  as  well  as  the 
municipal  system  of  our  boroughs  became  widely 
changed  from  its  primitive  character  ;  and  that  mass 
of  abuses  and  anomalies  grew  up,  which  was  only 
eradicated  Dy  tne  iteiorm  Bill  and  Municipal  Corpo- 
ration Bill  of  the  last  reign. 

But,  while  the  boroughs  were  untampered  with, 
and  while  all  freeholders  in  counties  had  a  right  to 
take  part  in  the  elections  (that  is  to  say,  during  the 
far  greater  part  of  the  two  centuries  which  we  have 
been  examining),  the  electoral  franchise  must  have 
been  in  the  hands,  or  within  the  reach,  of  almost  all 
whom  we  can  term  the  middle  classes  in  England. 
M.  Guizot's  observations  on  this  deserve  attention  ; 
though,  while  we  concur  with  their  truth,  it  is  impos~ 
sible  not  to  protest  in  spirit  against  the  atrocious 
character  of  the  legislation  against  the  labourers, 
which  has  been  previously  referred  to,  the  effect  of 
which  was  to  keep  them  in  the  dependence  and  igno- 
rance which  M.  Guizot  speaks  of,  and  whence,  in  a 
great  degree,  originated  that  incapacity  for  political 
rights,  on  which  he  founds  his  opinions.  His  words 
are :  "  The  true,  the  sole  general  principle  which  is 
manifested  in  the  distribution  of  electoral  rights  as  it 
then  existed  in  England,  is  this,  that  right  is  derived 
from,  and  belongs  to,  capacity.  This  requires  some 
explanation. 


246  RISE   AND   PROGRESS 

"  It  is  beyond  doubt,  that  at  this  period,  setting 
aside  the  chief  barons,  whose  personal  importance  was 
mch  that  it  was  necessary  to  treat  with  each  of  them 
individually,  the  freeholders,  the  clergy,  and  the  bur- 
gesses of  certain  towns,  could  alone  act  as  citizens. 
Those  not  comprised  in  one  or  other  of  these  classes 
were  chiefly  poor  husbandmen,  labouring  on  subor- 
dinate and  precarious  means.  They  included  all  men 
invested  with  real  independence,  free  to  dispose  of 
their  person  and  wealth,  and  in  a  position  to  rise  to 
some  ideas  of  social  interest.  This  it  is  which  con- 
stitutes political  capacity.  This  capacity  varies  ac- 
cording to  time  and  place ;  the  same  degree  of 
fortune  and  enlightenment  is  not  everywhere  and 
always  sufficient  to  confer  it,  but  its  elements  are 
constantly  the  same.  It  exists  wherever  we  meet 
with  the  conditions,  whether  material  or  moral,  of 
that  degree  of  independence  and  intellectual  develop- 
ment which  enables  a  man  freely  and  reasonably  to 
accomplish  the  political  act  he  is  required  to  perform. 
Assuredly,  considering  the  masses,  as  they  should  be 
considered  in  such  a  matter,  these  conditions  are  not 
met  with  in  England  in  the  fourteenth  century, 
elsewhere  than  among  the  freeholders,  the  clergy,  and 
the  burgesses  of  the  chief  towns.  Beyond  these 
classes,  nothing  is  found  but  almost  servile  depen- 
dence and  brutal  ignorance.  In  summoning  these 
classes,  then,  to  join  in  the  election,  the  electoral 
system  summoned  every  capable  citizen.  It  was 
derived,  therefore,  from  the  principle  that  capacity 
confers  right  ;  and  among  citizens  whose  capacity 
was  recognized,  no  inequality  was  established. 

"  Thus  neither  the  sovereignty  of  the  majority 
For  universal  suffrage  were  originally  the  basis  of  the 
British  electoral  system.  Where  capacity  ceased, 
limitation  of  right  was  established." 


OF   THE   CONSTITUTION.  247 


CHAPTER  XV. 


itite  of  the  Constitution  under  the  Tudora. — Revival  of  Spirit  in  the  House  of  Com- 
mons.— Weak  but  arbitrary  Character  of  the  first  two  Stuart  Kings. — Charles  L  sin- 
cere, but  an  Aggressor  on  the  Constitution. — The  Petition  of  Eight 


THE  gradual  progress  of  the  free  principles  of  our 
constitution  is  no  longer  to  be  traced  under  the 
Tudors,  with  the  same  regularity  which  is  observable 
under  the  Plantagenets,  from  John's  reign  downwards. 
There  seems  at  first  sight  to  be  a  reaction  towards 
despotism  ;  but  this  appearance  of  degeneracy  is  only 
on  the  surface.  Slavish  things  were  said  and  done  in 
high  places,  and  there  was  a  dearth  of  measures  of 
improvement,  not  because  the  nation  had  grown 
false-hearted  to  itself,  or  feeble-hearted,  but  because 
the  order  of  its  former  leaders  in  struggles  for  liberty 
now  no  longer  supplied  it  with  chieftains,  and  the 
ranks  of  society  whence  the  new  reformers  were  to 
spring,  had  not  yet  acquired  full  importance  and  self- 
reliance.  The  dreadful  civil  wars  of  York  and  Lan- 
caster had  hewn  the  barons  of  England  down  to  a 
scanty  and  scared  remnant,  which  the  subtle  policy 
of  Henry  VII.  and  the  resolute  ferocity  of  Henry 
VIII.  tended  more  and  more  to  weaken.  But  deep 
thought  and  bold  inquiry  were  active  throughout  the 
nation,  under  the  mighty  impulses  given  to  the  mind^ 
by  the  general  diffusion  of  the  art  of  printing,  by'iEt 


248  EISE   AND   PBOGEESS 

revival  of  the  study  of  the  classics,  Iby  the  exciting 
interest  of  the  great  geographical  discoveries  effected 
about  this  period,  and,  above  all,  by  the  Keformation. 
Our  parliaments  were,  indeed,  disgracefully  submissive 
under  the  two  last  Henrys.  °  Such  was  the  shameful 
facility  with  which  verdicts  of  guilty  were  then  ob- 
tained from  juries  in  State  prosecutions,  principally 
through  the  iniquitous  system  of  fining  and  impris- 
oning any  juror  who  dared  to  return  a  verdict  against 
the  wish  of  the  Crown  ;  the  judges,  in  their  applica- 
tion and  exposition  of  the  criminal  law,  were  such 
servile  tools  of  the  sovereign;  and  human  life  was 
lavished  on  the  scaffold  with  such  savage  prodigality, 
that  we  cannot  be  surprised  that,  while  the  peerage 
ceased  to  furnish  hereditary  tribunes  of  the  people, 
men  of  inferior  position  shrank  at  first  from  coming 
forward  as  State  martyrs  : — 

"  Nee  civis  erat  qui  libera  posset 
Verba  animi  proferre  et  vitam  impendere  vero." 

Thus  it  was  that  the  Court  of  Star-Chamber  (as 
the  old  court  of  the  king's  Concilium  Ordinarium  was 
now  called)  exercised  an  extensive  and  anomalous 
jurisdiction,  by  means  of  which  men  were  arbitrarily 
fined  and  imprisoned,  and  often  sentenced  to  cruel 
mutilations,  for  any  alleged  misconduct,  which  the 
lords  and  prelates  of  the  Council,  or  any  minister  of 
the  Crown,  might  think  fit  to  impute  to  them. 
Thus,  too,  the  subjects'  money  was  frequently  ex- 

*  The  following  observations  of  Lord  Bolingbroke  on  Henry  Vlll.'s  reign 
are  important  "  Henry  VIII.,  by  applying  to  his  parliaments  for  the 
jxtraordinary  powers  which  he  exercised,  and  by  taking  these  powers  for 
•uch  terms,  and  under  such  restrictions  as  the  parliament  imposed,  owned 
indeed  sufficiently  that  they  did  not  belong  of  right  to  the  Crown.  He 
owned  likewise  in  effect,  more  than  any  prince  who  went  before  him,  how 
absolutely  the  disposition  of  the  crown  of  England  belongs  to  the  peoplo 
of  England,  by  procuring  so  many  different  and  opposite  settlements  of  it 
to  be  made  in  parliannnt." — Bol.,  voL  i.  p.  375 


Or   THE   CONSTITUTION.  249 

torted  without  parliamentary  assent,  under  the  name 
of  benevolences  or  loans.  These  things,  and  other 
violences,  were  endured  to  an  extent,  which,  under 
the  Plantagenets,  would  have  met  with  firm  remon- 
strance, if  not  with  armed  resistance.  But  the  inde- 
pendent power  of  the  gentry  and  of  the  wealthier 
portions  of1  the  middle  classes  was  steadily,  though 
silently  increasing  ;  and  under  the  last  three  Tudors 
we  find  the  House  of  Commons  gradually  resuming 
the  firm  free  tone  and  bearing,  and  the  resolution  to 
maintain  and  work  out  the  rights  of  the  people, 
which  the  great  barons  had  formerly  displayed  at 
Kunnymede  and  Lewes.*  Under  Elizabeth,  the  pop- 
ular party  in  the  House  of  Commons  was  organized 
and  active  ;  and  more  than  once  successful  in  its 
efforts  at  State  reform.  Much,  indeed,  in  her  reign 
was  endured  for  her  sake,  and  not  for  want  of  a 
knowledge  of  its  unconstitutional  character,  or  of 
spirit  to  resist  it.  Many  a  haughty  speech  and  many 
a  harsh  act  of  Elizabeth's  were  forgiven  and  forgotten 
by  Englishmen,  when  they  thought  of  the  true  English 
heart  and  daring  of  the  Queen,  whom  they  had  seen 
cheering  her  troops  at  Tilbury,  and  defying  the  spirit- 
ual thunders  of  the  Vatican,  and  the  more  perilous 
thunders  of  the  Armada  ;  who  had  sent  out  Drake, 
Raleigh,  Cavendish,  Hawkins,  and  Frobisher,  to  beard 
England's  foes  and  spread  England's  fame  beyond 
the  southern  and  western  waves.  But  when  the 
imbecile,  though  insolent,  Stuarts  came  to  our  throne, 
and  made  our  national  honour  a  by-word  abroad, 
while  at  home  they  paraded  each  most  offensive  claim 
to  arbitrary  power  in  the  most  offensive  manner,  no 
such  patriotic  forbearance  could  be  expected.  For- 

*  The  paiiis  taken  by  the  Crown  during  these  reigns  to  extend  the 
royal  influence  in  the  House  of  Commons  by  creating  new  boroughs  and 
interfering  with  elections,  prove  the  importance  of  the  parliament.  See 
Hallam's  "  Const.  Hist.,"  vol.  i.  p.  60. 

11* 


250  EISE   AND   PBOGEESS 

tunate  for  England,  indeed,  it  was  that  two  such 
weak  princes  as  the  first  James  and  Charles,  reigned 
next  after  Elizabeth  ;  that  we  had  not  a  succession 
of  active  and  prosperous  sovereigns,  under  whom 
overgrown  prerogative  might  have  been  allowed  to 
take  too  deep  root,  while  the  national  liberties  per- 
ished amidst  the  blaze  of  the  national  glory.* 

The  memory  of  Charles  I.  is  entitled  to  all  possi- 
ble benefit  of  the  excuse,  that  he  believed  himself  to 
be  iully  entitled  to  the  arbitrary  power,  which  he 
attempted  to  exercise.  Bolingbroke  correctly  observes 
of  the  first  Stuart,  that  "  The  doctrines  which  estab- 
lished the  unbounded  and  ineffable  prerogative  of  the 
king  ;  which  reduced  the  privileges  of  parliament  to  be 
no  longer  an  ancient  and  undoubted  right  and  inherit- 
ance, but  derived  them  from  the  permission  and  tolera- 
tion of  the  Crown,  and  declared  them  liable  to  be  re- 
trenched at  the  will  of  the  prince  ;  and  which  by 
necessary  consequence  changed  at  once  the  nature  of 
the  English  constitution,  from  that  of  a  free  to  that  of  an 
arbitrary  government  j  all  these  doctrines,  we  say,  or 
the  principles  on  which  they  were  established,  had 
been  already  publicly  and  frequently  asserted  by  King 
James.  They  were  the  language  of  the  Court ;  and  a 
party  had  been  formed  in  the  nation  who  made  pro- 
fession of  them.  They  were  maintained  in  conversa- 
tion. They  were  pleaded  for  in  print  ;  and  they 
became  soon  afterwards  the  disgrace  and  profanation 
of  the  pulpit."  f  And  he  afterwards,  with  equal  truth, 
observes  of  Charles  himself,  that  "  King  Charles  came 
a  party  man  to  the  throne,  and  that  he  continued  an 


*  TLe  first  session  of  James's  first  parliament  deserves  notice,  as  it 
was  then  that  the  right  of  the  Honse  of  Commons  to  determine  all  mat- 
ters concerning  the  election  of  its  own  members  was  established.  Set 
"  Lord  John  Russell  on  the  Constitution  "  p.  67,  and  Hallum's  "  Const 
History,"  vol.  L 

t  Bol.,  vol.  i.  pp.  487,  488. 


OF   THE   CONSTITUTION.  251 

invasion  on  the  people's  rights,  whilst  he  imagined 
himself'  only  concerned  in  the  defence  of  his  own. 
We  avow  it  as  an  opinion  we  have  formed  on  reading 
the  relations  published  on  all  sides,  and  to  which,  it 
seems  to  us,  that  all  the  authentic  anecdotes  of  those 
times  may  he  reconciled.  This  prince  had  sucked  in 
with  his  milk  those  absurd  principles  of  government 
which  his  father  was  so  industrious,  and,  unhappily 
for  king  and  people,  so  successful  in  propagating.  He 
found  them  espoused,  as  true  principles  both  of  reli- 
gion and  policy,  by  a  whole  party  in  the  nation, 
whom  he  esteemed  friends  to  the  constitution  in 
Church  and  State.  He  found  them  opposed  by  a 
party,  whom  he  looked  on  indiscriminately  as  enemies 
to  the  church  and  to  monarchy.  Can  we  wonder  that 
he  grew  zealous  in  a  cause  which  he  understood  to 
concern  him  so  nearly,  and  in  which  he  saw  so  many 
men  who  had  not  the  same  interest,  and  might  there- 
fore be  supposed  to  act  on  a  principle  of  conscience 
equally  zealous  ?  Let  any  one,  who  hath  been  deeply 
and  long  engaged  in  the  contests  of  party,  ask  himself 
on  cool  reflection,  whether  prejudices  concerning  men 
and  things  have  not  grown  up  and  strengthened  with 
him,  and  obtained  an  uncontrollable  influence  over  his 
conduct.  We  dare  appeal  to  the  inward  sentiments 
of  every  such  person.  With  this  habitual  bias  upon 
him,  King  Charles  came  to  the  throne  ;  and  to  com- 
plete the  misfortune,  he  had  given  all  his  confidence 
to  a  madman.  An  honest  minister  might  have  shown 
him  how  wrong  his  measures  were  ;  a  wise  one  how 
ill-timed.  Buckingham  was  incapable  of  either.  The 
violence  and  haughtiness  of  his  temper  confirmed  his 
master  in  the  pursuit  of  these  measures  ;  and  the 
character  of  the  first  minister  became  that  of  the 
administration."  * 

*  BoL,  voL  L  pp.  516,  517. 


252  RISE  AND   PROGRESS 

But  the  circumstance  that  the  king  acted  consci- 
entiously, though  mistakenly,  in  his  aggressions  on 
the  constitution,  did  not  alter  the  fact  of  his  being 
an  aggressor,*  nor  did  it  diminish  the  necessity  of 
opposing  his  aggressions,  as  was  done  in  the  parlia- 
ment to  which  we  owe  the  Petition  of  Eight. 

The  first  two  parliaments  of  Charles  I.  had  been 
hastily  dismissed  by  him  m  petulant  discontent,  be- 
cause they  adhered  to  the  old  constitutional  plan  of 
making  the  grant  of  supplies  depend  upon  the  redress 
of  grievances.  Those  grievances  were  actively  con- 
tinued by  the  Crown  and  its  ministers  ;  some  of  them 
being  the  arbitrary  billeting  of  soldiers,  the  forcing  of 
loans  to  the  king,  under  the  title  of  benevolences,  the 
imprisoning  those  who  refused  to  lend,  several  of 
whom,  on  suing  out  their  writ  of  Habeas  Corpus, 
were,  in  defiance  of  it,  remanded  to  prison. 

Still,  with  whatever  rigour  unparliamentary  meth- 
ods of  getting  money  were  resorted  to,  Charles  found, 
as  the  early  Anglo-Norman  kings  had  found,  that  no 
tyranny  could  extort  so  much  from  the  nation,  as 
could  be  gained  from  it,  if  its  consent  to  the  levy 
was  first  obtained.  His  third  parliament  was  there- 
fore summoned,  which  met  in  March,  1628,  and 
continued  with  one  prorogation  till  March  1629. 
"  The  prime  intellectual  manhood  of  England  "  now 

*  "  In  England  the  royal  power  was  the  aggressor.  Charles  I.,  full  of 
haughty  pretensions,  though  devoid  of  elevated  ambition,  and  moved 
rather  by  the  desire  of  not  derogating  in  the  eyes  of  the  kings,  his  peers, 
than  by  that  of  ruling  with  a  strong  hand  over  his  people,  twice  attempted 
to  introduce  into  the  country  the  maxims  and  the  practice  of  absolute 
monarchy :  the  first  time,  in  presence  of  parliament,  at  the  instigation  of 
a  vain  and  frivolous  favourite,  whose  presumptuous  incapacity  shocked  the 
good  sense  and  wounded  the  self-respect  of  the  humblest  citizen :  the 
second  time,  by  dispensing  with  parliament  altogether,  and  ruling  alone 
by  the  hand  of  a  minister,  able  and  energetic,  ambitious  and  imperious, 
though  not  without  greatness  of  mind,  devoted  to  his  master,  by  whom 
he  was  imperfectly  understood  and  ill  supported,  and  aware  too  late  that 
kings  are  not  to  be  saved  solely  by  incurring  ruin,  however  nobly,  in  theu 
service." — Guizot'.-s  English.  Revolu'.ion,  pp.  5,  6. 


OF   THE  CONSTITUTION.  253 

came  forward  to  the  rescue  of  the  constitution. 
Wentworth  (who  had  not  yet  gone  over  to  the 
Court),  Selden,  Pym,  Holies,  Coke,  Eliot,  and  Hamp-. 
den  were  of  this  parliament,  and  other  men  of  energy 
and  ability,  intent  "  on  vindicating  our  ancient  vital 
liberties,  by  reinforcing  our  ancient  laws  made  by  our 
ancestors  ;  by  setting  forth  such  a  character  of  them 
as  no  licentious  spirit  should  dare  to  enter  upon 
them."  * 

The  debates  of  the  House  of  Commons,  and  their 
conferences  with  the  House  of  Lords  on  this  momen- 
tous subject  (as  they  are  collected  in  the  second  vol- 
ume of  the  Parliamentary  History),  are  full  of  interest 
and  instruction  for  the  student  of  our  constitution. 
"  The  liberty  of  the  subject  in  person  and  estate  "  was 
the  great  theme  of  these  discussions ;  and  an  amount 
of  learning,  spirit,  sense,  and  eloquence  (though  not 
immingled  with  quaintness  and  pedantry)  was  brought 
to  bear  on  it,  which  we  could  scarcely  parallel  in  any 
subsequent  part  of  the  records  of  our  Parliamentary 
Oratory.  Besides  passing  resolutions,  which  asserted 
the  right  of  every  Freeman  not  to  be  imprisoned  or 
restrained,  except  for  lawful  cause  expressed  in  a  law- 
ful warrant,  and  also  his  "ancient  and  undoubted 
right  to  have  full  and  absolute  property  in  his  goods 
and  estate,  and  not  to  be  taxed  without  assent  of 
parliament,"  the  Commons  applied  to  the  Lords  to 
join  them  in  declaring  and  ascertaining  the  rights  and 
liberties  of  the  subject.  This  led  to  several  confer- 
ences between  the  two  Houses,  in  which,  among  the 
managers  in  behalf  of  the  Commons,  appeared,  Sel- 
den, Coke,  Glanville,  Noye,  and  other  lawyers  of 
such  eminence,  that  the  Peers  considered  it  fair  that 
the  Attorney-General,  and  other  Counsel  for  the 

*  Speech  of  Wentworth. 


254  BISE   AND   PROGRESS 

Crown,  should  be  heard  before  them  in  support  of  the 
Royal  Prerogative. 

The  principal  argument  of  the  Crown  lawyers,  in 
defence  of  the  assumed  Royal  right  of  arbitrary  im- 
prisonment, was  drawn  from  the  words  "  Vel  per  le- 
gem  terroe,"  in  the  clause  of  Magna  Carta,  which  was 
relied  on  in  behalf  oi'the  subject.''  Tne  Attorney- 
General  admitted  that  the  Great  Charter  was  binding 
on  the  Crown,  but  he  maintained  "  that  it  did  not 
restrain  the  king  from  imprisoning  a  subject,  but  with 
this  clause,  nisi  per  legate  judicium  parium  suorum, 
vel  per  legem  terrce"  and  he  said  "  how  far  lex  terrce 
extends,  is,  and  ever  was,  the  question."  He  further 
maintained  that  "  the  law  hath  ever  allowed  this  lati- 
tude to  the  king  or  his  privy  council,  which  are  his 
representative  body,  in  extrs^ordinary  cases  to  restrain 
the  persons  of  such  freemen,  as^  for  reasons  of  state, 
they  find  necessary  for  a  time,  without  the  present 
expressing  the  causes  thereof :  which,  if  it  should  be 
expressed,  might  discover  the  secret  of  the  state  in 
that  point,  and  might  easily  prevent  the  service  by 
that  discovery."  Selden,  and  the  other  managers  of 
the  Commons,  denied  the  truth  of  this  interpretation 
of  the  great  clause  of  the  Great  Charter  (which,  if 
admitted,  would  authorize  the  king  to  kill  as  well  as 
to  imprison),  and  argued  that  the  words  "per  legem 
terrce  "-  meant  "  process  of  the  law." 

Many  references  were  made  on  both  sides  to  old 
law-books  and  reports,  but  the  managers  in  behalf  of 
the  Commons  had  a  clear  superiority  in  this  part  of 
the  argument.  They  referred,  in  particular,  to  a  case 
in  the  sixteenth  year  of  Henry  VI.'s  reign,  in  order  to 
show  that  the  mere  command  of  the  king  to  imprison 
a  man  was  no  justification  for  the  imprisonment,  even 
though  the  king  ordered  it  in  his  royal  presence  One 

*  See  p.  134,  supra. 


OF   THE   CONSTITUTION.  255 

of  the  counsel  for  the  Crown,  Serjeant  Ashley,  who 
had  gone  far  beyond  his  leader  the  Attorney-General 
in  arguing  for  the  Royal  Prerogative,  was  rebuked  by 
the  Lord  President,  and  ordered  into  custody  by  the 
House  of  Lords,  for  the  unconstitutional  doctrines 
which  he  had  advanced.  Ashley  in  his  argument,* 
had  boldly  appealed  to  the  right  divine  of  kings.  He 
explicitly  "  left  fencing,"  and  justified  the  actual  case 
of  a  loan  of  money  "  required  and  refused,  and  there- 
upon a  commitment,"  and  he  concluded,  "that  for 
offences  against  the  State,  in  cases  of  State  govern- 
ment, the  king  or  his  council  hath  lawful  power  to 
punish  by  imprisonment  without  showing  particular 
cause,  where  it  may  tend  to  the  disclosing  of  the 
secrets  of  State  government." 

The  House  of  Lords  showed  their  repudiation  of 
such  tenets  of  royal  arbitrary  power,  by  their  own 
somewhat  arbitrary  punishment  of  the  advocate  who 
enounced  them.  But  the  zeal  of  the  Lower  House 
was  not  fully  communicated  to  the  Upper  one,  and 
several  delays  took  place,  during  which  the  king  en- 
deavoured to  soothe  the  Commons  with  vague  prom- 
ises ;  but  Sir  Edward  Coke  warned  them  that  general 
words  were  no  sufficient  satisfaction  for  particular 
grievances.  "  Did  ever  Parliament  rely  on  messages  ? 
The  king  must  speak  by  a  record,  and  in  particulars, 
and  not  in  generals.  Let  us  put  up  a  Petition  of 
Right ;  not  that  I  distrust  the  king,  but  that  we 
cannot  take  his  trust  save  in  a  parliamentary  way." 

The  Petition  of  Right  was  accordingly  drawn  up 
by  the  Commons.  The  Lords  proposed  in  a  confer- 
ence to  add  the  following  clause  : — "  We  humbly 
present  this  petition  to  your  Majesty,  not  only  with  a 
care  of  preserving  our  own  liberties,  but  with  due 
regard  to  leave  entire  that  sovereign  power  with 

*  Parliamentary  History,  vol.  ii.  p.  315. 


256  RISE  AND   PBOGBESS 

which  your  Majesty  is  entrusted  for  the  protection, 
safety,  and  happiness  of  your  people."  The  Com- 
mons saw  clearly  the  dangerous  effect  of  this  stipula- 
tion in  favour  of  the  royal  prerogative,  and  peremptorily 
refused  to  concur  in  the  amendment.  The  expressions 
used  on  this  occasion,  by  some  of  the  vigilant  guar* 
dians  of  our  liberties,  are  remarkable.*  On  the  re- 
turn of  the  Commons  to  their  own  House  from  the 
conference,  when  this  addition  had  been  proposed,  the 
addition  was  debate^.  The  first  speaker  was  Mr.  Al- 
ford,  who  saioTj^Let  us  look  into  the  Kecords  and 
see  what  they  are ;  what  is  '  sovereign. .  power  ? '  Bo- 
din  saith,  that  it  is  free  from  «ny  conditions.  By 
this  we  shall  acknowledge  a  regal,  as  well  as  a  legal 
power.  Let  us  give  that  to  the  king  the  law  gives 
him,  and  no  more." 

Mr.  Pym. — "  I  am  not  able  to  speak  to  this  ques- 
tion, for  I  know  not  what  it  is.  All  our  Petition  is 
for  the  laws  of  England,  and  this  power  seems  to  be 
another  distinct  power  from  the  power  of  the  law.  I 
know  how  to  add  sovereign  to  the  king's  person,  but 
not  to  his  power ;  and  we  cannot  *  leave '  to  him  a 
*  sovereign  power ; '  for  we  never  were  possessed  of  it." 

Mr.  Haclcwell. — "  We  cannot  admit  of  these 
words  with  safety ;  they  are  applicable  to  all  the  parts 
of  our  Petition  :  it  is  in  the  nature  of  a  saving,  and 
by  it  we  shall  imply  as  if  we  had  incroached  on  his 
prerogative.  All  the  laws  we  cite  are  without  a  sav- 
ing ;  and  yet,  now,  after  the  violation  of  them,  must 
we  add  a  saving  ?  I  have  seen  divers  petitions  where 
the  subject  claimed  a  right,  yet  there  I  never  saw  a 
Baving  of  this  nature." 

Sir  Edw.  Coke. —  "This  is  magnum  in  parvo. 
This  is  propounded  to  be  a  conclusion  of  our  Petition. 
It  is  a  matter  of  great  weight ;  and,  to  speak  plainly, 

*  Part.  Hist,  voL  ii. 


OP    THE   CONSTITUTION.  257 

it  will  overthrow  all  our  Petitions  ;  it  trenches  to  all 
parts  of  it  ;  it  flies  at  loans,  at  the  oath,  at  imprison- 
ment, and  at  billeting  of  soldiers  ;  this  turns  all 
about  again.  Look  into  all  petitions  of  former  times ; 
they  never  petitioned  wherein  there  was  a  saving  of 
the  king's  sovereignty.  I  know  that  prerogative  is 
part  of  the  law,  but  f  sovereign  power '  is  no  parlia- 
mentary word.  In  my  opinion  it  weakens  Magna 
Charta,  and  all  the  statutes  ;  for  they  are  absolute, 
without  any  saving  of  '  sovereign  power  ; '  and  should 
we  now  add  to  it,  we  shall  weaken  the  foundations  of 
law,  and  then  the  building  must  needs  fall.  Take  we 
heed  what  we  yield  unto  ;  Magna  Charta  is  such  a 
fellow,  that  he  will  have  no  '  sovereign/  I  wonder 
this  '  sovereign '  was  not  in  Magna  Charta,  or  in  the 
confirmations  of  it.  If  we  grant  this,  by  implication 
we  give  a  '  sovereign  power '  above  all  law.  Power, 
in  law,  is  taken  for  a  power  with  force  ;  the  sheriff 
shall  take  the  power  of  the  county  ;  what  it  means 
here,  God  only  knows.  It  is  repugnant  to  our  Peti- 
tion ;  that  is,  a  Petition  of  Eight,  grounded  on  acts 
of  parliament." 

Mr.  Selden  well  referred  to  the  attempt  made  by 
Edward  I.  to  render  illusory  his  confirmation  of  the 
Great  Charter  by  inserting  the  words,  "  Salvo  Jure 
coronce  nostrce."  Selden  reminded  his  hearers  of  the 
resistance  which  was  made  to  that  dangerous  interpo- 
lation, and  how  the  king  gave  way,  and  the  obnoxious 
words  were  given  up.*  The  House  of  Lords,  on  being 
informed  of  the  objections  made  by  the  Commons  to 
their  addition,  sought  to  fortify  it  by  reasons  which 
were  reported  to  the  Lower  House  by  the  Lord 
Keeper.  He  said  (among  other  things)  that  "  they 
meant  to  give  the  king  nothing  now  but  what  was  his 
before  ;  and,  as  to  the  words  *  sovereign  power/  as  he 

•  See  p.  158  supra. 


258  RISE   AND   PEOGKESS 

i»  a  Mng,  lie  is  a  sovereign,  and  must  have  power  ; 
and  the  words  were  easier  than  '  prerogative.' "  Mr. 
Mason  then  combated  the  reason  of  the  Lord  Keeper 
in  a  long  and  able  speech,  in  which  he  pointed  out 
that  if  the  Lords'  addition  to  the  Petition  of  Eight 
were  adopted,  the  Judges  would  infallibly  construe  the 
Petition  as  a  solemn  parliamentary  acknowledgment 
of  the  king's  having,  beyond  his  ordinary  prerogative 
(by  which  he  could  not  impose  taxes,  or  imprison,)  an 
extraordinary  and  transcendent  f  sovereign  power/  for 
the  protection  of  the  people,  for  which  purpose  he 
might  tax,  imprison,  or  billet  soldiers  as  he  pleased. 
He  warned  the  House  that  all  such  acts  of  sovereign 
power  would  be  said  to  be  for  the  protection  of  the 
people,  and  that  the  king  alone  would  determine 
whether  they  were  so  or  not.  He  pointed  out  the 
impossibility  of  such  questions  being  dealt  with  by  a 
parliament  "which  is  a  body  made  up  of  several 
writs,  and  may  be  dissolved  by  one  commission,"  and 
if  the  matter  were  to  be  brought  before  the  courts  of 
law  "  why  then  the  judges  and  the  judgments  may  be 
easily  conjectured." — Mr.  Glanville  in  a  subsequent 
conference  with  the  Lords,  urged  these  and  other 
arguments  against  the  addition  with  full  force  and 
skill ;  and  Sir  Henry  Marty n  justly  appealed  to  the 
conduct  and  demeanour^of  the  Commons  as  entitling 
them  to  the  absolute  conjunction  of  the  Upper 
House. 

"  The  moderate  and  temperate  carriage  of  the  House 
of  Commons  in  this  parliament,"  said  Sir  Henry,  "be 
it  spoken  without  vanity,  and  yet  in  much  modesty, 
may  seem  to  deserve  your  Lordships'  assistance  in  this 
petition  ex  congruo  et  condigno  :  especially  if  you 
would  be  pleased  to  consider  the  discontents,  pres- 
sures, and  grievances,  under  which  themselves  in 
great  number,  and  the  parts  for  which  they  serve, 
lamentably  groaned,  when  they  first  arrived  here  ; 


OF  THE   CONSTITUTION.  259 

and  which  was  daily  represented  unto  them  by  fre- 
quent packets  and  advertisements  out  of  their  several 
counties,  all  which,  notwithstanding,  have  not  been 
able  to  prevail  upon  our  moderation,  or  to  cause  our 
passion  to  overrule  our  discretions  ;  and  the  same  yet 
continueth  in  our  hearts,  in  our  hands,  and  in  our 
tongues  ;  as  appeareth  in  the  mould  of  this  Petition, 
wherein  we  pray  no  more  but  that  we  may  be  better 
treated  hereafter.  My  lords,  we  are  not  ignorant  in 
what  language  our  predecessors  were  wont  to  express 
themselves  upon  much  lighter  provocation  ;  and  in 
what  style  they  framed  their  petitions  ;  no  less  amends 
could  serve  their  turn  than  severe  commissions  to 
inquire  upon  the  violators  of  their  liberties  ;  banish- 
ment of  some,  execution  of  other  offenders  ;  more 
liberties,  new  oaths  of  magistrates,  judges,  and  offi- 
cers, with  many  other  provisions  written  in  blood.  Yet 
from  us  there  hath  been  heard  no  angry  word  in  this 
Petition.  No  man's  person  is  named.  We  say  no 
more  than  what  a  worm  trodden  on  would  say  (if  he 
could  speak),  '  I  pray,  tread  on  me  no  more/  " 

At  length,  after  considerable  discussion,  the  peers 
gave  way,  and  the  bill  having  passed  both  Houses  as  the 
bill,  the  whole  bill,  and  nothing  but  the  bill,  awaited 
only  the  royal  assent  to  become  law,  and  "  to  form  a 
memorable  era  in  the  English  Government."  * 

On  the  2nd  .of  June,  A.  D.  1628,  the  peers  were 
assembled,  the  Commons  summoned,  and  the  kmg;s 
appeared  in  the  House  of  Lords  to  give  his  answer  in 
parliament  to  the  bilL  But,  to  the  surprise  of  all 
men,  Charles,  instead  of  using  the  well-known  ancient 
form  of  words  by  which  such  a  bill  receives  the  royal 
assent,  addressed  the  parliament  and  told  them,  "  The 
king  willeth  that  right  be  done  according  to  the  laws 
and  customs  of  the  realm,  and  that  the  statutes  be 

*  Home. 


260  BISE   AND   PROGRESS 

put  in  due  execution,  that  his  subjects  may  have  no 
cause  to  complain  of  any  wrong  or  oppression  con- 
trary to  their  just  rights  and  liberties  ;  to  the  preser- 
vation whereof  he  holds  himself  in  conscience  as  well 
obliged,  as  of  his  prerogative." 

Th^JJpjmrnons  returned  highly  incensed  with  this 
evasive  circumlocution.  They  forthwith  began  to 
assail  the  favourites  of  the  Crown,  and  impeached  a 
Dr.  Manwaring  who  had  preached  a  sermon,  which 
had  afterwards  been  printed  by  the  king's  command, 
in  which  discourse  the  right  divine  of  kings  to  deal  as 
they  pleased  with  their  subjects'  property  on  emer- 
gencies, whether  parliament  consented  or  not,  and  the 
duty  of  passive  obedience  in  the  subject,  were  openly 
and  unreservedly  maintained.  The  Commons  pro- 
cured the  trial  and  condemnation  of  this  satellite  of 
arbitrary  power,  and  were  proceeding  to  assail  others 
higher  in  Charles's  councils,  when  the  king's  obstinacy 
at  length  gave  way,  and  the  Petition  of  Eight  re- 
ceived the  royal  assent  in  the  customary  form  of 
Norman  French,  and  this  second  great  solemn  decla- 
ration of  the  liberties  of  Englishmen  was  declared  to 
be  the  law  of  the  land,  amidst  the  general  rejoicings 
of  the  nation. 


PETITION   OF  RIGHT. 

3  CAR.  I.  c.  1. 

The  Petition  exhibited  to  his  Majesty  by  the  Lords  Spiritual 

and  Temporal  and  Commons,  in  this  present  Parliament 

assembled,  concerning  divers  Rights  and  Liberties  of  tho 

Subjects,  with  the  King's  Majesty's  royal  answer  there- 

.  unto  in  full  Parliament. 


OF   THE   CONSTITUTION.  261 

To  the  King's  Most  Excellent  Majesty 

Humbly  shew  unto  our  Sovereign  Lord  the  King,  the 
Lords  spiritual  and  temporal,  and  Commons  in  Parliament 
assembled,  that  whereas  it  is  declared  and  enacted  by  a  stat- 
ute made  in  the  time  of  the  reign  of  King  Edward  L,  com- 
monly called  Statutum  de  tallagio  non  concedendo*  that  no 
tallage  or  aid  shall  be  laid  or  levied  by  the  King  or  his  heira 
in  this  realm,  without  the  good  will,  and  assent  of  the  arch- 
bishops, bishops,  earls,  barons,  knights,  burgesses,  and  other 
the  freemen  of  the  commonalty  of  this  realm ;  and  by  autho- 
rity of  Parliament  holden  in  the  five-and-twentieth  year  of 
the  reign  of  King  Edward  III.,  it  is  declared  and  enacted, 
that  from  thenceforth  no  person  should  be  compelled  to  make 
any  loans  to  the  King  against  his  will,  because  such  loans 
were  against  reason  and  the  franchise  of  the  land  ;  and  by 
other  laws  of  this  realm  it  is  provided,  that  none  should  be 
charged  by  any  charge  or  imposition  called  a  benevolence, 
nor  by  such  like  charge  ;  by  which  statutes  before  mentioned 
and  other  the  good  laws  and  statutes  of  this  realm,  your  sub- 
jects have  inherited  this  freedom,  that  they  should  not  be 
compelled  to  contribute  to  any  tax,  tallage,  jid,  or  other  like 
charge  not  set  by  common  consent",  in  Parliament. 

II.  Yet  nevertheless,  of  late  divers  commissions  direct- 
ed to  sundry  commissioners  in  several  counties,  with  instruc- 
tions, have  issued ;  by  means  whereof  your  people  have  been 
in  divers  places  assembled,  and  required  to  lend  certain  sums 
of  money  unto  your  Majesty,  and  many  of  them,  upon  their 
refusal  so  to  do,  have  had  an  oath  administered  unto  them 
not  warrantable  by  the  laws  or  statutes  of  this  realm,  and 
have  been  constrained  to  become  bound  to  make  appearance 
and  give  utterance  before  your  Privy  Council  and  in  other 
places,  and  others  of  them  have  been  therefore  imprisoned,  con- 
fined, and  sundry  other  ways  molested  and  disquieted ;  and 
divers  other  charges  have  been  laid  and  levied  upon  your 
people  in  several  counties  by  lord  lieutenants,  deputy  lieuten- 

*  This  supposed  statute  found  a  place  among  our  records  very  early, 
and  its  recognition  by  the  Petition  of  Right  gave  it  thenceforth  the  autho- 
rity of  a  statute.  But  Blackstone,  in  his  work  on  the  Charters,  has  shown 
lhat  it  was  originally  nothing  more  than  an  intended  compendium  of  the 
Confirmatio  CSartarum.  See  too,  Guizot,  "  Essais,"  p.  311,  n. ;  and  Hal- 
lam's  "  Supplemental  Notes,"  p.  306. 


RISE   AND   PEOGEESS 

ants,  commissioners  for  musters,  justices  of  peace  and  others, 
by  command  or  direction  of  your  Majesty,  or  your  Privy 
Council,  against  the  laws  and  free  customs  of  the  realm. 

III.  And  whereas  also  by  the  statute  called  "  The  Great 
Charter  of  the   Liberties  of  England,"  it  is  declared  and 
enacted,  That  no  freeman  may  be  taken  or  imprisoned,  or  be 
disseised  of  his  freehold  or  liberties,  or  his  free  customs,  or 
be  outlawed  or  exiled,  or  in  any  manner  destroyed,  but  by 
the  lawful  judgment  of  his  peers,  or  by  the  law  of  the  land 

IV.  And  in  the  eight-and-twentieth  year  of  the  reign  of 
King  Edward  III.,  it  was  declared  and  enacted  by  authority 
if  Parliament,  that  no  man,  of  what  estate  or  condition  that 
he  be,  should  be  put  out  of  his  land  or  tenements,  nor  taken, 
nor  imprisoned,  nor  disherited,  nor  put   to  death  without 
being  brought  to  answer  by  due  process  of  law. 

V.  Nevertheless,  against  the  tenor  of  the  said  statutes, 
and  other  the  good  laws  and  statutes  of  your  realm  to  that 
end  provided,  divers  of  your  subjects  have  of  late  been  im- 
prisoned without  any  cause  shewed  ;  and  when  for  their  deli- 
verance they  were  brought  before  justices  by  your  Majesty's 
writs  of  habeas  corpus,  there  to  undergo  and  receive  as  the 
court  should  order,  and  their  keepers  commanded  to  certify 
the  causes  of  their  detainer,  no  cause  was  certified,  but  that 
they  were  detained  by  your  Majesty's  special  command,  sig- 
nified by  the  lords  of  your  Privy  Council,  and  yet  were  re- 
turned back  to  several  prisons,  without  being  charged  with 
anything  to  which  they  might  make  answer  according  to  the 
law. 

VI.  And  whereas  of  late  great  companies  of  soldiers  and 
mariners  have  been  dispersed  into  divers  counties  of  the 
realm,  and  the  inhabitants  against  their  wills  have  been  com- 
pelled to  receive  them  into  their  houses,  and  there  to  suffer 
them  to  sojourn,  against  the  laws  and  customs  of  this  realm, 
and  to  the  great  grievance  and  vexation  of  the  people. 

VII.  And  whereas  also  by  authority  of  Parliament,  in 
the  five-and-twentieth  year  of  the  reign  of  King  Edward 
III.,  it  is  declared  and  enacted,  that  no  man  should  be  fore- 
judged of  life  or  limb  against  the  form  of  the  Great  Charter 
and  the  law  of  the  land  ;  and  by  the  said  Great  Charter  and 
other  the  laws  and  statutes  of  this  your  realm,  no  man  ought 
to  be  adjudged  to  death  but  by  the  laws  established  in  thia 


OP   THE   CONSTITUTION.  2G3 

your  realm,  either  by  the  customs  of  the  same  realm,  or  by 
Acts  of  Parliament  :  and  whereas  no  offender  of  what  kind 
soever  is  exempted  from  the  proceedings  to  be  used,  and  pun- 
ishments to  be  inflicted  by  the  laws  and  statutes  of  this  your 
realm  ;  nevertheless  of  late  time  divers  commissions  under 
your  Majesty's  great  seal  have  issued  forth,  by  which  certain 
persons  have  been  assigned  and  appointed  commissioners 
with  power  and  authority  to  proceed  within  the  land,  accord- 
ing to  the  justice  o_f  martial  law,  against  such  soldiers  or 
mariners,  or  other  dissolute  persons  joining  with  them,  as 
should  commit  any  murder,  robbery,  felony,  mutiny,  or  other 
outrage  or  misdemeanor  whatsoever,  and  by  such  summary 
course  and  order  as  is  agreeable  to  martial  law,  and  as  is  used 
in  armies  in  time  of  war,  to  proceed  to  the  trial  and  condem- 
nation of  such  offenders,  and  them  to  cause  to  be  executed 
and  put  to  death  according  to  the  law  martial. 

VIII.  By  pretext  whereof  some  of  your  Majesty's  sub- 
jects have  been  by  some  of  the  said  commissioners  put  to 
death,  when  and  where,  if  by  the  laws  and  statutes  of  the 
land  they  had  deserved  death,  by  the  same  laws  and  statutes 
also  they  might,  and  by  no  other  ought  to  have  been  judged 
and  executed. 

IX.  And  also  sundry  grievous  offenders,  by  colour  there- 
of chiiminganexemDdon,  have  escaped  the  punishments  due 
to  them  by  the  laws  and  statutes  of  this  your  realm,  by  reason 
that  divers  of  your  officers  and  ministers  of  justice  have  un- 
justly refused  or  forborne  to  proceed  against  such  offenders 
according  to  the  same  laws  and  statutes,  upon  pretence  that 
the  said  offenders  were  punishable  only  by  martial  law,  and 
by  authority  of  such  commissions  as  aforesaid ;    which  com- 
missions, and  all  other  of  like  nature,  are  wholly  and  directly 
contrary  to  the  said  laws  and  statutes  of  this  your  realm. 

X.  They  do  therefore  humbly  pray  your  most  excellent 
Majesty,  that  no  man  hereafter  be  compelled  to  make  or 
yield  any  gift,  loan,  benevolence,  tax,  or  such  like  charge, 
without  common  consent  by  Act  of  Parliament  ;  and  that 
none  be  called  to  make  answer,  or  to  take  such  oath,  or  to 
give  attendance,  or  be  confined,  or  otherwise  molested  or  dis- 
quieted concerning  the  same  or  for  refusal  thereof ;  and  that 
no  freeman,  in  any  such  manner  as  is  before  mentioned,  be 
imprisoned  or  detained  ;  and  that  your  Majesty  would  be 


264  RISE   AND   PROGRESS 

pleased  to  remove  the  said  soldiers  and  mariners,  and  that  your 
people  may  not  be  so  burthened  in  time  to  come  ;  aud  that 
the  aforesaid  commissions,  for  proceeding  by  martial  law, 
may  be  revoked  and  annulled ;  and  that  hereafter  no  commis- 
sions of  like  nature  may  issue  forth  to  any  person  or  persons 
whatsoever  to  be  executed  as  aforesaid,  lest  by  colour  of 
them  any  of  your  Majesty's  subjects  be  destroyed  or  put  to 
death  contrary  to  the  laws  and  franchise  of  the  land. 

XI.  All  which  they  most  humbly  pray  of  your  most  ex- 
cellent Majesty  as  their  rights  and  liberties,  according  to  the 
laws  and  statutes  of  this  realm ;  and  that  your  Majesty  would 
also  vouchsafe  to  declare  that  the  awards,  doings,  and  pro- 
ceedings, to  the  prejudice  of  your  people  in  any  of  the  prem- 
ises, shall  not  be  drawn  hereafter  into  consequence  or  exam- 
ple ;  and  that  your  Majesty  would  be  also  graciously  pleased, 
for  the  further  comfort  and  safety  of  your  people,  to  declare 
your  royal  will  and  pleasure,  that  in  the  things  aforesaid  all 
your  omcers  and  ministers  shall  serve  you  according  to  the 
laws  and  statutes  of  this  realm,  as  they  tender  the  honour  ot 
your  Majesty,  and  the  prosperity  of  this  kingdom. 

Qua  quidem  petitions  lecta  et  plenius  intellectd  per  dic- 
tum dominum  regem  taliter  est  responsum  in  pleno  parlia- 
mento,  viz.  Soit  droit  fait  comme  est  desire. 


There  has  been  no  necessity  for  us  to  enter  into 
the  acrimonious  controversies,  which  are  connected 
with  the  name  and  fate  of  Charles  I.,  while  our  at- 
tention has  been  directed  to  the  conduct  of  his  earlier 
parliament,  especially  to  that  to  which  we  are  indebt- 
ed for  the  Petition  of  Right. 

We  are  not  obliged  to  base  our  approbation  of  the 
proceedings  of  these  assemblies  on  the  testimony  of 
writers  hostile  to  the  Crown.  The  authority  of  the 
royalist  Clarendon  is  unexceptionable  on  this  subject, 
and  it  is  unmistakable.  Clarendon  says,  of  Charles's 
first  three  parliaments,*  "  I  do  not  know  any  formed 

*  "  History  of  the  Rebellion,"  voL  i.  p.  8. 


OP   THE  CONSTITUTION.  265 

act  of  either  House  that  was  not  agreeable  to  the 
wisdom  and  justice  of  great  courts  upon  those  extra- 
ordinary occasions.  And  whoever  considers  the  acts 
of  power  and  injustice  of  some  of  the  ministers  in  the 
intervals  of  parliament,  will  not  be  much  scandalized 
at  the  warmth  and  vivacity  of  those  meetings. 

"  In  the  second  parliament  there  was  a  mention, 
nnd  intention  declared,  of  granting  five  subsidies,  a 
proportion  (how  contemptible  soever  in  respect  of  the 
pressures  now  every  day  imposed)  scarce  ever  before 
heard  of  in  parliament.  And  that  meeting  being 
upon  very  unpopular  and  unplausible  reasons  imme- 
diately dissolved,  those  five  subsidies  were  enacted 
throughout  the  whole  kingdom  with  the  same  rigour, 
as  if,  in  truth,  an  Act  had  passed  to  that  purpose. 
Divers  gentlemen  of  prime  quality,  in  several  counties 
of  England,  were,  for  refusing  to  pay  the  same,  com- 
mitted to  prison,  with  great  rigour  and  extraordinary 
circumstances.  And  could  it  be  imagined,  that  those 
men  would  meet  again  in  a  free  convention  of  parlia- 
ment without  a  sharp  and  severe  expostulation,  and 
inquisition  into  their  own  right,  and  the  power  that 
had  imposed  upon  that  right  ?  And  yet  all  these 
provocations,  and  many  other,  almost  of  as  large  an 
extent,  produced  no  other  resentment  than  the  Peti- 
tion of  Bight  (of  no  prejudice  to  the  Crown),  which 
was  likewise  purchased  at  the  price  of  five  subsidies 
more,  and  in  a  very  short  time  after  that  supply  grant- 
ed, that  parliament  was  likewise,  with  strange  cir- 
cumstances of  passion  on  all  sides,  dissolved/' 

So  far,  therefore,  as  the  passing  of  the  Petition  of 
Eight,  it  is  impossible  to  proceed  in  the  reign  of 
Charles  I.  without  entering,  "  the  ground  debateable," 
though  even  here  I  feel  that  after  every  possible  cau- 
tion— 

"  Incedo  per  ignes 
Suppositos  cineri  doloso." 

12 


266  RISE   AND   PROGRESS 

But  it  would  be  hopeless  to  go  further,  and  to  seek 
coldly  to  deal  with  "  that  momentous  period  of  out 
history  which  no  Englishman  ever  regards  without 
interest,  and  few  without  prejudice — the  period  from 
which  the  factions  of  modern  times  trace  their  diver- 
gence, which  after  the  lapse  of  two  centuries  still  calls 
forth  the  warm  emotions  of  party  spirit,  and  affords  a 
test  of  political  principles."  So  Hallarn  has  correctly 
styled  the  period  commencing  with  the  struggle  be- 
tween Charles  I.  and  the  Long  Parliament,  that  met 
in  1640.  The  same  remarks  might  with  equal  truth 
be  applied  to  the  ten  preceding  years,  during  which 
"  the  king  had  in  a  manner  renounced  the  constitu- 
tion, and  instead  of  governing  with  the  assistance  and 
concurrence  of  a  parliament,  governed  by  illegal  acts 
of  power."  *  They  apply,  indeed,  to  the  whole  time 
between  the  dissolution  of  the  parliament  that  passed 
the  Petition  of  Bight  in  1629,  and  the  restoration  of 
Charles  II.  in  1660.  In  a  work  which  is  designed  to 
be  kept  as  clear  as  possible  from  party  doctrines,  I 
shall  necessarily  pass  over  these  thirty  years — years 
of  unparalleled  interest  in  history ;  but  which  are 
rather  years  of  abnormal  and  revolutionary  struggle^ 
than  of  English  constitutional  government. 

•  Bolingbrokfl. 


OF   THE   CONSTITUTION.  267 


CHAPTER  XVI. 

flic  Restoration. — Affection  of  the  English  Nation  for  their  old  Institutions. — Effect* 
of  the  Perifxl  of  Revolution. — Military  Tenures  abolished. — Habeas  Corprjs  Act. — 
Custom  of  Fining  Jurors  for  their  Verdicts  pronounced  Illegal. — Revolution  of 
1688.— The  Bill  of  Rights.— The  Act  of  Settlement— Kingship  in  England  since  the 
Revolution. — Ite  Limitations.— Its  enduring  Value. — House  of  Lords. — Attempt  to 
check  Creation  of  Peers. — Benefits  of  the  House  of  Peers  to  the  Country. — Hoosa 
of  Commons.— Borough  Members.— Rotten  Boroughs.— Reform  Bill 

THE  restoration  of  monarchy  in  1660,  with  the  en- 
thusiastic  consent  and  joy  of  the  whole  nation,  except 
a  few  disappointed  military  adventurers,  and  a  few 
high-minded  but  fanatic  zealots  for  aristocratic  re- 
publicanism, is  a  great  fact  in  our  history.  It  proves 
how  deeply  the  affection  for  our  ancient  institutions 
is  rooted  in  the  heart  of  the  English  people.  It  proves 
that  the  genius  of  our  nation  is  incapable  of  reconciling 
itself  either  to  the  tumultuary  vehemence  of  a  single 
dominant  popular  assembly,  however  high  may  be  the 
intellectual  eminence  of  many  of  its  members,  or  to 
the  stern  regimen  of  a  military  autocrat,  whatever 
lustre  it  may  derive  from  the  successes  of  his  foreign 
administration.  But  still  the  nation  had  not  passed 
through  these  thirty  eventful  years  between  1629  and 
1660,  without  experiencing  some  permanent  results  on 
the  national  character.  "  From  the  time  of  the  great 
revolutionary  crisis,  the  English  people  had  the  good 
fortune  to  profit  by  experience,  and  the  good  sense  not 
to  give  themselves  up  to  extreme  parties.  It  is  from 
the  reign  of  Charles  II.  that  this  good  sense,  which  is 
the  political  intelligence  of  a  free  people,  has  presi- 


268  RISE   AND   PROGRESS 

ded  over  the  destinies  of  England.  The  revolution 
through  which  the  English  nation  had  just  passed 
had  terminated  in  foree  grea.fi  rpanJta 

"  In  the  jjrsf.  pUn^  the  king  could  never  again 
separate  himself  from  the  parliament.  The  cause  of 
monarchy  was  gained,  but  that  of  absolute  monarchy 
was  lost  forever.  Theologians  and  philosophers,  like 
Filmer  or  Hobbs,  might  preach  the  dogma  or  main- 
tain the  principle  of  absolute  power,  and  their  ideas 
might  excite  the  indignation  or  the  favour  of  specula- 
tive thinkers  or  vehement  partisans.  In  the  opinion 
of  the  nation,  however,  the  question  was  practically 
decided :  royalists  and  revolutionists  regarded  the 
close  union  and  the  mutual  control  of  the  Crown  and 
parliament  as  the  right  of  the  country,  and  as  neces- 
sary to  its  interests. 

"  In  the  second  place,  the  House  of  Commons  was 
in  effect  the  preponderant  branch  of  the  parliament. 
Its  direct  or  formal  sovereignty  was  a  revolutionary 
principle  which  was  now  generally  decried  and  exe- 
crated ;  and  the  Crown  and  the  House  of  Lords  had 
recovered  their  rights  and  their  dignity.  But  their 
overthrow  had  been  so  violent  and  complete,  that, 
even  after  the  fall  of  their  enemies,  they  were  unable 
to  re-establish  themselves  in  their  ancient  ascendancy ; 
and  neither  the  faults  nor  the  reverses  of  the  House 
of  Commons  could  obliterate  the  effect  of  its  terrible 
victories.  The  royalist  party  were  now  masters  in 
that  assembly,  and,  in  its  relations  to  the  Crown  and 
the  administration  of  the  country,  inherited  the  con- 
quests of  the  Long  Parliament.  In  spite  of  some 
appearances  of  an  opposite  tendency,  the  preponderant 
influence  of  the  House  of  Commons  over  the  affairs  of 
the  country  was,  from  the  reign  of  Charles  II.,  daily 
more  obvious  and  decisive. 

"  These  two  political  facts  were  accompanied  by 
cne  of  still  higher  importance,  relating  to  the  religious 


OF    THE   CONSTITUTION.  269 

condition  of  the  country  :  the  tjomplete  and  definitive 
ascendancy  of  Protestantism  in  England  was  the  other 
great  result_of  the  Kevolution."  * 

No  attempt  was  made  after  the  ^Restoration  to  re- 
vive some  of  the  instruments  of  royal  misgovernment, 
which  the  Long  Parliament  had  overthrown.  The 
Court  of  Star  Chamber  had  been  abolished,  nor  was 
it  ever  revived.  The  vexatious  profits  of  the  military 
tenures  had  been  laid  aside,  and  the  12  Car.  II.,  c.  24, 
abolished  military  tenures  altogether,  converting  them 
into  common  freeholds,  and  thus  swept  away  those 
feudal  rights  of  the  Crown  to  wardships,  primer  seis- 
ins, aids,  homages,  &c.,  which  had  long  been  so  bur- 
densome to  the  nobility  and  gentry,  who  held  lands 
by  military  tenure.  There  are  some  other  statutes  of 
this  reign  which  deserve  mention  on  account  of  their 
constitutional  importance. 

The  first  regular  parliament  of  Charles  passed  an 
important  Act  to  prevent  the  Legislature  being  over- 
awed, and  their  votes  coerced  in  future  by  riotous  and 
seditious  mobs  under  the  guise  of  petitioners.  I'hat 
statute  (13  Car.  II.  st.  1,  c.  5)  is  still  in  force,  and 
enacts  that  "no  person  or  persons  whatsoever  shall 
repair  to  his  Majesty  or  both  or  either  of  the  Houses 
of  Parliament,  upon  pretence  of  presenting  or  deliver- 
ing any  petition,  complaint,  remonstrance,  declaration, 
or  other  addresses,  accompanied  with  excessive  num- 
bers of  people,  nor  at  any  one  time  with  above  the 
number  of  ten  persons." 

The  Habeas  Corpus  Aci.  also,  which  was  passed 
in  this  reign  (31  Car.  II.,  c.  2),  is  of  great  constitu- 
tional value,  though  it  by  no  means  introduced  any 
new  principle  into  our  system,  or  formed  any  such 
epoch  in  the  acquisition  of  the  national  liberties,  as 
Borne  writers  represent.  But  it  made  the  remedies 

*  Guizot  on  the  English  Revolution. 


270  RISE   AND   PBOGBESS 

ngainst  arbitrary  imprisonment  short,  certain,  and  ob- 
tainable at  all  times  and  in  all  cases.  The  statute 
itself  enacts — 

u  J..  That  on  complaint  and  request  in  writing  by 
or  on  behalf  of  any  person  committed  and  charged 
with  any  crime  (unless  committed  for  treason  or  felony 
expressed  in  the  warrant ;  or  as  accessory  or  on  suspi- 
cion of  being  accessory  before  the  fact  to  any  petit 
treason  or  felony ;  or  upon  suspicion  of  such  petit 
treason  or  felony  plainly  expressed  in  the  warrant ;  or 
unless  he  is  convicted  or  charged  in  execution  by 
legal  process),  the  Lord  Chancellor  or  any  of  the 
judges  in  vacation,  upon  viewing  a  copy  of  the  war- 
rant, or  affidavit  that  a  copy  is  denied,  shall  (unless 
the  party  has  neglected  for  two  terms  to  apply  to  any 

*  court  for  his  enlargement)   award  a  habeas  corpus 
£   for  such  prisoner,  returnable  immediately  before  him- 
^  self  or  any  other  of  the  judges  ;  an$.  upon  the  return 

-  made  shall  discharge  the  party,  if  bailable,  upon  giv- 
ing security  to  appear  and  answer  to  the  accusation 

{>-  in  the  proper  court  of  judicature.  2±  That  such  writs 
shall  be  indorsed  as  granted  in  pursuance  of  this  Act, 
and  signed  by  the  person  awarding  them.  3,  That 
the  writ  shall  be  returned,  and  the  prisoner  brought  up 
within  a  limited  time  according  to  the  distance,  not 
exceeding  in  any  case  twenty  days.  ^»  That  officers 
and  keepers  neglecting  to  make  due  returns,  or  not 
delivering  to  the  prisoner  or  his  agent  within  six  hours 
after  demand  a  copy  of  the  warrant  of  commitment, 
or  shifting  the  custody  of  the  prisoner  from  one  to 
another  without  sufficient  reason  or  authority  (speci- 
fied in  the  Act),  shall  for  the  first  offence  forfeit 
£100,  and  for  the  second  offence  £200  to  the  party 
grieved,  and  be  disabled  to  hold  his  office.  J5.  That 
no  person  once  delivered  by  habeas  corpus  shall  be 
re-committed  for  the  same  offence,  on  penalty  of 
£500.  6.  That  every  person  committed  for  treason 


OF   THE   CONSTITUTION.  271 

or  felony,  shall,  if  lie  requires  it,  the  first  week  of  the 
next  term,  or  the  first  day  of  the  next  session  of  oyer 
and  terminer,  he  indicted  in  that  term  or  session,  or 
else  admitted  to  hail,  unless  the  queen's  witnesses 
cannot  he  produced  at  that  time  ;  and  if  acquitted, 
or  not  indicted  and  tried  in  the  second  term  or  session, 
lie  shall  he  discharged  from  his  imprisonment  for  such 
imputed  offence  ;  hut  that  no  person,  after  the  assizes 
shall  he  open  for  the  county  in  which  he  is  detained, 
shall  he  removed  hy  habeas  corpus  till  after  the  assi- 
zes are  ended,  hut  shall  be  left  to  the  justice  of  the 
judges  of  assize.  7.  That  any  such  prisoner  may 
move  for  and  obtain~his  habeas  corpus  as  well  out  of 
the  Chancery  or  Exchequer,  as  out  of  the  King's 
Bench  or  Common  Pleas,  and  the  Lord  Chancellor  or 
judges  denying  the  same  on  sight  of  the  warrant  or 
oath  that  the  same  is  refused,  forfeits  severally  to  the 
patry  grieved  the  sum  of  £500.  _8.  That  this  writ 
of  habeas  corpus  shall  run  into  the  counties  palatine, 
cinque  ports,  and  other  privileged  places,  and  the 
Islands  of  Jersey  and  Guernsey.  J9.  That  no  inhabi- 
tant of  England  (except  persons  contracting  or  con- 
victs praying  to  he  transported,  or  having  committed 
some  capital  offence  in  the  place  to  which  they  are 
sent)  shall  he  sent  prisoner  to  Scotland,  Ireland,  Jer- 
sey, Guernsey,  or  any  places  beyond  the  seas  within 
or  withoit  the  queen's  dominions,  on  pain  that  the 
party  committing,  his  advisers,  aiders,  and  assistants, 
shall  forfeit  to  the  party  aggrieved  a  sum  not  less  than 
£500,  to  be  recovered  with  treble  costs  ;  shall  be  dis- 
abled to  bear  any  office  of  trust  or  profit ;  shall  incur 
the  penalties  of  prcemunire  ;  and  shall  be  incapable 
of  the  queen's  pardon." — 3  Black.  Com.  137.* 

*  Such  is  the  substance  of  that  great  and  important  statute.  But  as 
the  Act  is  confined  to  imprisonments  on  criminal^  or  supposed  criminal 
charges,  the  56  Geo.  III.,  c.  100,  was  passed,  extending  the  power  of  issu- 
ing a  writ  of  habeas  corpus  to  other  cases.  By  this  statute  it  is  enacted, 


272  KISE  AND   PROGRESS 

These  enactments,  and  especially  the  Habeas  Cor- 
pus  Act,  make  the  name  of  Charles  II.  figure  credit- 
ahly  in  our  statute-book,  and  there  is  ojie  judicial 
decision,  of  this  reign,  which  established  "a,  constitu- 
tional principle  of  the  highest  value,  or  rather  which 
put  an  end  to  a  long-continued  abuse  of  the  most 
perilous  character. 

Under  the  Tudor  princes  the  Court  of  Star 
Chamber  assumed  the  power  of  punishing  jurors  by 
fine  and  imprisonment  for  returning  verdicts  contrary 
to  the  evidence.  Such  was  the  pretext  on  which  the 
court  pretended  to  act ;  but  the  real  cause  of  their 
dangerous  and  oppressive  interference  generally  was, 
that  the  jury  had  acquitted  the  prisoner  in  a  State 
trial,  contrary  to  the  wishes  of  the  Crown  and  its  min- 
isters. 

Attempts  were  made  to  exercise,  through  the 
Courts  of  Common  Law,  the  same  violent  means  of 
perverting  justice.  It  is  to  be  recollected  that,  under 
all  our  kings,  prior  to  the  Act  of  Settlement,  the 
judges  were  not  merely  appointed  by  the  king,  but  held 
their  commissions  only  during  his  pleasure,  and  it 
will  readily  be  understood  how,  in  State  prosecutions, 
a  trial  before  a  jury,  who  knew  that  they  would  be 
themselves  ruinously  fined  and  cruelly  imprisoned,  if 
they  acquitted  the  prisoner,  must  have  become  "a 
mockery,  a  delusion,  and  a  snare."  But  in  1670,  on 
a  trial  of  the  celebrated  Quaker  Penn  and  Mead  at 
the  Old  Bailey  for  an  unlawful  assembly,  a  juryman 
named  Bushel  (who  deserves  the  imperishable  grati- 

that  where  any  person  shall  be  confined  or  restrained  of  his  liberty  (other- 
wise than  for  some  criminal  or  supposed  criminal  matter,  and  except  per- 
•ons  imprisoned  for  debt  or  by  process  in  any  civil  suit),  it  shall  and  may 
be  lawful  for  any  judge  or  baron,  upon  complaint  made  to  him  by  or  on 
behalf  of  the  party  so  confined  or  restrained,  if  it  shall  appear  by  affidavit 
or  affirmation  that  there  is  probable  and  reasonable  ground  for  such  com- 
plaint, to  award  in  vacation  time  a  writ  of  habeas  corpus  ad  subjiciendtm 
returnable  immediately. 


OF    THE   CONSTITUTION.  273 

tilde  of  Englishmen0)  was  firm,  and  encouraged  his 
fellow  jurors  to  be  firm,  against  all  the  threats  of  the 
court,  and  acquitted  the  prisoners.  The  recorder 
(who  tried  the  case)  set  a  fine  of  forty  marks  on  each 
of  the  jurors  for  perverseness  and  contumacy.  Bushel 
refused  to  pay  the  fine,  and  the  recorder  thereon  com- 
mitted him  to  prison.  He  sued  out  a  writ  of  Habeas 
Corpus  from  the  Court  of  Common  Pleas,  and  on  a 
return  being  made  to  it  that  he  had  as  a  juror  acquit- 
ted Penn  and  Mead  "  contra  plenam  et  manifestam 
evidentiam"  the  subject  was  elaborately  discussed  ; 
and  Chief  Justice  Yaughan,  "  in  a  judgment  replete 
with  masculine  sense,  luminous  argument,  and  pro- 
found historical  research,"  pronounced  the  return  in- 
sufficient, and  the  fine  and  imprisonment  illegal. 
From  that  time  forth  the  invaluable  doctrine,  that  a 
jury  in  the  discharge  of  their  duty  are  responsible 
only  to  Grod  and  their  consciences,  has  never  been 
shaken  or  impeached. "j* 

Chief  Justice  Vaughan's  conduct  in  Bushel's  case 
is,  however,  an  almost  solitary  exception  to  the  infa- 
mous character  of  the  State  Trials  and  other  judicial 
proceedings  in  Charles  II.'s  reign.  There  are,  indeed^ 
few  periods  in  our  history  more  discreditable  and  more 
unpleasing  to  dwell  on,  than  the  twenty-eight  years 
between  the  Restoration  and  the  Revolution.  They 

*  See  an  excellent  >pitome  of  this  trial,  and  the  subsequent  proceed- 
ings in  the  Common  Pleas,  in  Mr.  Phillimore's  "  History  of  the  Law  of 
Evidence,"  p.  250 ;  see  also  Mr.  Hepworth  Dixon's  "  Life  of  Penn." 

•(•  In  very  early  times,  when  the  jurors  were  themselves  witnesses,  ana 
gave  a  verdict  from  their  own  personal  knowledge  of  the  transaction  (see 
p.  189,  supra),  they  were  punishable  for  a  wilfully-false  verdict  (that  is, 
for  wilfully-false  evidence)  by  a  writ  of  attaint.  For  this  purpose  twenty- 
1'cv.r  other  jurors  were  summoned,  who  reinvestigated  the  case,  and  ac- 
cording to  whose  decision  of  it,  the  first  jury  were  either  freed  from  blame 
or  severely  punished.  As  jurors  ceased  to  be  witnesses,  and  heard  and 
acted  upon  the  testimony  of  others,  the  process  of  attaint  fell  into  disuse. 
Sir  T.  Smith,  in  Elizabeth's  reign,  speaks  of  it  as  then  obsolete.  It  waa 
formally  abolished  only  in  George  IV.'s  reign. 

12* 


274  BI3E   AND    PBOGBESS 

must  certainly  be  studied  in  order  fully  to  perceive 
the  necessity  and  rightly  to  appreciate  the  benefits  of 
that  last-mentioned  great  event.  But  the  limits  of 
the  present  volume  are  unsuited  for  the  purpose  j  and, 
indeed,  the  great  historical  work,  with  which  Mr. 
Macaulay  is  enriching  our  literature,  has  made  the 
leading  scenes  of  1688  and  the  immediately  preceding 
years,  familiar  to  every  educated  Englishman.  I  can 
but  sketch  their  outlines  here  ;  and  there  is  no  need 
of  long  comments.  Differences  of  opinion  as  to  many 
points  in  the  characters  of  the  first  three  Stuart  king's 
will  be  found  in  writers  of  eminence,  but  there  is  no 
discrepancy  as  to  the  last.  Even  Hume,  the  artful 
and  unscrupulous  partisan  of  the  House  of  Stuart, 
confesses  of  James  II.  that  "  almost  the  whole  of  this 


reign  consists  of  attempts  always  imprudent, 
often  illegal,  sometimes  both,  against  whatever  was 
most  loved  and  revered  by  the  nation."  Some  of  the 
grievances  whereof  the  English  of  those  days  com- 
plained most  bitterly  —  those,  namely,  which  arose 
from  the  king's  open  encouragement  of  Roman  Cath- 
olics, in  defiance  of  the  laws  respecting  members  of 
that  church,  and  from  his  evident  zeal  for  making 
that  creed  the  established  religion  of  the  land,  in  lieu 
of  the  Protestant  —  may  not  press  with  the  proper 
amount  of  importance  on  the  minds  of  some  modern 
readers,  unless  they  bear  in  mind  the  condition  of 
Europe  at  that  time,  and  consider  how  completely  the 
bigotry  and  the  ambition  of  Louis  XIV.  had  identified 
the  progress  of  Roman  Catholicism  with  the  progress 
of  despotic  principles.  James  was  the  hireling  of 
Louis,  and  was  animated  by  the  same  feelings.  He 
strove  to  gain  a  simultaneous  triumph  over  Church 
and  State  in  England,  and  to  lay  the  national  faith 
beneath  the  pope's  feet,  while  he  cast  down  the  na- 
tional liberties  beneath  his  own. 

The  natural  consequence  of  this  was,  that  a  spirii 


OF   THE   CONSTITUTION.  275 

jf  ultra-Prptestanfjarq  mingled  with  and  became  an 
animating  principle  of  the  opposition  which  was  raised 
against  his  assaults  upon  the  constitution.  The  polit- 
ical struggle  became  necessarily  for  the  time  a  reli- 
gious one.  And  in  that  age  the  successful  mainte- 
nance of  Protestant  ascendancy  involved  the  rescue 
and  the  advancement  of  constitutional  freedom. 
$j  James  II.  came  to  the  throne  in  1685,  and  found,  in 
the  circumstances  of  that  period,  peculiar  facilities  for 
the  advancement  of  arbitrary  jpower.  During  the  last 
year  of  his  predecessor's  reign,  the  Crown  had  suc- 
ceeded in  humbling  the  popular  party,  and  in  destroy- 
ing many  of  its  chiefs.  The  attempts  which  Charles 
the  II.'s  last  parliament  had  made  to  assert  the  power 
of  the  House  of  Commons,  had  been  successfully 
punished  by  dissolution  ;  and  much  had  been  done  to 
render  any  future  House  of  Commons  as  subservient 
to  the  Crown,  as  had  been  the  case  in  the  worst  years 
of  Henry  VIII.  This  had  been  effected  by  a  daring, 
but  crafty,  attack  ffi  foe  chart^ra  of  the  corporate 
boroughs,  which  were  the  strongholds  of  the  popular 
party.  The  Crown-lawyers,  in  1683,  filed  an  infor- 
matkn  against  the  corporation  of  the  city  of  London, 
alleging  that  its  Charter  had  been  forfeited  for  certain 
imputed  misdemeanors  ;  and  the  packed  judges  of 
the  Court  of  King's  Bench  gave,  as  a  matter  of 
course,  judgment  in  favour  of  the  Crown.  The  cor- 
poration of  the  capital  was  then  re-modelled,  so  as  to 
make  it  subservient  to  the  royal  will.  The  same 
course  was  taken  against  other  corporate  places  ;  and 
very  many  more  were  intimidated  into  surrendering 
their  charters  to  the  Crown,  and  receiving  new  ones, 
which  were  framed  on  a  far  more  oligarchical  plan, 
and  which  gave  to  the  Crown  the  right  of  appointing 
the  first  members.*  This  course  was  steadily  pursued 

*  See  Hallam,  2  "  Const  Hist.,"  p.  614. 


276  RISE   AND   PROGRESS 

during  the  last  years  of  Charles  II.'s  reign,  and  the 
first  of  that  of  James  ;  and  its  effect  was  to  place  in 
the  hands  of  the  Crown  the  nomination  of  a  large 
proportion  of  the  members  of  the  House  of  Commons, 
and  also  to  give  its  adherents  the  power  of  domineer- 
ing in  all  the  daily  details  of  local  municipal  politics 
over  their  Whig  fellow-townsmen.  The  great  mass 
of  the  nation,  weary  of  the  turbulent  struggles  of 
recent  years,  was  now  almost  blindly  zealous  in  its 
devotion  to  the  royal  will.  Abroad,  James  could 
reckon  on  the  ready  support  of  Louis  XIV.,  the  most 
powerful  monarch  of  the  age.  James  defeated  easily, 
in  the  beginning  of  his  reign,  two  insurrections,  which, 
under  Argyle  in  Scotland  and  Monmouth  in  England, 
were  attempted  against  him  by  the  violent  part  of  the 
enemies  of  his  House  ;  and  the  truth  of  the  adage, 
that  an  unsuccessful  revolt  strengthens  the  force 
against  which  it  is  directed,  was  seemingly  exemplified 
in  the  passive  submission  of  the  nation  to  the  cruelties 
with  which  those  revolts  were  visited  by  the  military 
and  the  judicial  ministers  of  the  royal  will.  King 
James  established  and  maintained  a  disciplined  army 
of  20,000  men,  though  in  profound  peace,  and  though, 
so  far  from  having  any  transmarine  possessions  of  his 
Crown  to  coerce  or  protect,  he  had  in  Ireland  an  ap- 
parently inexhaustible  supply  of  fanatic  and  devoted 
followers,  to  repress  any  possible  movements  that 
England  might  attempt  in  defence  of  Protestantism 
and  constitutional  law. 

Providentially  for  this  country,  James  was  too 
violent  to  be  crafty  or  even  prudent,  in  the  execution 
of  his  schemes.  He  was  as  ostentatious  in  the  prp- 
mature  display  of  his  designs  against  the  people's 
Church  and  State,  as  he  was  pusillanimous  whoxi 
those  designs  called  forth  resistance,  though  at  ?n 
earlier  period  of  his  life,  when  admiral  of  our  fleets 
in  battle,  he  had  exhibited  courage  of  the  highest 


OF   THE   CONSTITUTION.  277 

order.  He  commenced  his  reign  by  a  violation  of  the 
cardinal  principle  of  the  constitution,  which  forbids 
the  taking  of  the  subjects'  money  by  the  Crown,  save 
by  consent  of  parliament.  James  showed  of  how 
little  value  the  safeguards  of  the  Great  Charter,  or 
the  Petition  of  Eight,  and  of  the  numerous  other 
statutes  in  confirmation  of  them,  would  be  to  the 
people  who  endured  his  reign,  by  arbitrarily  levying, 
at  his  accession,  the  Customs'  and  Excise  duties,  the 
parliamentary  grant  of  which  to  the  Crown  had  been 
limited  to  the  life  of  the  late  king.  James,  however, 
was  not  averse  to  parliaments,  provided  they  would 
appoint  his  revenue  as  he  desired,  and  would  register 
his  edicts  with  the  same  submissive  facility  which  his 
royal  brother  of  France  found  in  the  parliaments  of 
Paris.*  He  called  a  parliament,  which  met  May 
19th,  1685.  Not  content  with  relying  on  the  effect  of 
the  royal  war  against  the  corporations,  which  has 
already  been  alluded  to,  the  Court  put  in  force  every 
artifice  ;  and  used  injustice  and  violence  of  the  gross- 
est kind  throughout  England,  to  manage  the  elec- 
tions. An  eminently  servile  House  of  Commons  was 
the  result,  which  granted  to  James,  tor  JiiS  life,  a 
revenue  of  two  millions  a-year.  This  was  an  ampler 
income  than  any  former  king  of  England  had  en- 
joyed ;  and,  aided  by  the  subsidies  which  James 
received  from  Louis  XIV.,  made  him  independent  of 
parliament  for  the  rest  of  his  reign,  so  far  as  regarded 
the  important  point  of  pecuniary  supplies.  But  James 
dismissed  even  this  compliant  assembly,  because  they 
hesitated  at  carrying  into  effect  his  projects  in  favour 
of  the  Roman  Catholic  against  the  Protestant  church. 
James  now  "  showed  plainly  that,  with  a  bench  of 
judges  to  pronounce  his  commands,  and  an  army  to 

*  See  his  speech  to  his  parliament,  and  the  comments  on  it,  in  Mr 
Wingrove  Cooke's  "  History  of  Party,"  voL  L  p.  391. 


278  EISE   AND   PROGRESS 

enforce  them,  he  would  not  suffer  the  mockery  of 
constitutional  limitations  to  stand  any  longer  in  hi? 
way."*  He  openly  carried  into  execution  his  assumed 
right  to  dispense,  by  royal  prerogative,  with  the  ob- 
servance of  the  laws  of  the  land  ;  and  eleven  out  of 
the  twelve  judges  pronounced  a  judgment  in  favour 
of  that  right,  in  a  case  which  the  king  caused  to  be 
brought  before  them,  having  first  carefully  weeded 
the  bench  of  those  members  who  retained  any  scruples 
of  conscience,  and  having  appointed  new  judges  in 
their  stead.f 

Under  the  same  claim  of  possessing  a  kingly 
prerogative  superior  to  all  law,  James,  in  1686,  set  up 
a  high  court  of  ecclesiastical  f-nmm^rm,  in  direct 
defiance  of  the  Act  of  Parliament  passed  in  Charles 
I.'s  reign,  which  put  down  the  High  Commission 
Court  then  existing,  and  provided  that  no  new  court 
should  be  erected  with  the  like  power,  jurisdiction, 
and  authority.  Among  other  acts  of  flagrant  tyranny 
committed  by  this  infatuated  prince,  are  his  expulsion 
of  the  fellows  of  Magdalen  College.  Oxford,  for  re- 
fusing to  elect  as  their  president,  in  obedience  to 
royal  mandate,  and  in  violation  of  the  law  of  the 
land  and  their  oaths,  a  Roman  Catholic  nominee  of 
the  Crown  ;  his  command  to  all  clergymen  to  read 
publicly  in  their  churches  the  royal  declaration  of 
indulgence,  by  which  the  king  abrogated  a  large 
number  of  statutes  ;  and  his  prosecution  of  the  seven 
bishops  as  seditious  libellers,  for  presenting  to  him  a 
petition,  wherein  they  respectfully  stated  their  unwil- 
lingness to  put  into  execution  an  illegal  order. 

There  was  for  a  time  an  apparent  submissiveness  in 
England  to  this  royal  overthrow  of  the  constitution. 

*  Hallam,  vol.  iii.  p.  83. 

t  See  Hale's  case,  "  State  Trials,"  xi.  1166  ;  and  see  the  comments 
on   it  of  Hallam,  3  "  Const.   Hist."  86 ;  Mackintosh's  "  View  of 
•i  James  II.,"  p.  69. 


OF    THE   CONSTITUTION.  279 

But  the  heart  of  the  nation  was  sound  and  true  ; 
and,  as  men  became  gradually  aware  of  the  real 
nature  of  the  crisis  which  the  rashness  of  the  king 
had  hurried  on,  all  parties  laid  aside  their  animosities 
against  each  other,  and  a  public  feeling  was  created 
for  the  rescue  of  the  natioaaljfaitfc  purl  the  public 
liberty.  It  was  evident  that  such  a  government,  as 
James  was  setting  up,  was  a  despotism,  unmitigated 
by  any  effectual  check  ;  and  the  savage  cruelty  of 
Jeffries,  and  of  the  other  judicial  wretches,  whom 
James  delighted  to  honour,  had  taught  the  people 
that  such  a  despotism  would  be  as  oppressive  in 
practice  as  it  was  degrading  in  theory.  Nor  could 
Englishmen  of  that  age,  when  they  looked  to  the 
foreign  policy  of  England,  feel  that  consolation  for 
the  loss  of  domestic  freedom,  which  the  subjects  of 
an  absolute  monarch  sometimes  derive  from  the  in- 
creased power  and  glory  of  the  State.  James  was 
the  paid  vassal  of  Louis  XIV. ;  and  England,  under 
James,  was  forced  to  stand  tamely  by,  whilst  the  king 
of  France  wrought  his  ambitious  schemes  against  the 
independence  of  the  rest  of  Europe. 

I  have  already  alluded  to  the  important  influence 
which  the  general  abhorrence  and  dread  of  Popish 
ascendancy  exercised  in  extending  and  animating  the 
national  resistance  to  King  James.  Many  were  roused 
into  action  by  that  feeling,  who  might  have  regarded 
with  apathy  any  amount  of  royal  encroachment  upon 
merely  civil  rights.  And  both  by  the  well-known 
character  of  James  himself,  and  by  the  character  of 
the  fanatic  priests  and  confessors  who  were  his  favour- 
ite councillors,  it  was  made  manifest  that  the  declara- 
tions of  general  toleration,  which  James  put  forward, 
were  mere  pretences.  Even  the  Dissenters  from  the 
Anglican  Church  saw  clearly  that  the  king's  ulti- 
mate object  was  to  restore  the  compulsory  domination 
of  Roman  Catholicism  in  England ;  and  that  he 


280  BISE   AND   PROGRESS 

would  not  scruple,  when  he  thought  that  a  convenient 
time  had  arrived,  to  employ  for  that  purpose  means 
as  savage  and  unsparing,  as  those  by  which  his  patron 
and  model  King  Louis  XIV.  was  striving  to  extirpate 
Protestantism  and  all  liberty  of  conscience  in  France. 

A  good  and  brave  man,  in  the  beginning  of  1688, 
might  have  felt  all  this,  and  yet  might  have  shrunk 
from  that  tremendous  remedy  of  armed  opposition  to 
established  government,  which  can  never  be  rightly 
attempted,  while  there  is  any  rational  hope  of  deliv- 
erance by  other  means.  Before  that  memorable  year 
was  half  over,  no  such  hope  remained.  There  was  no 
longer  any  prospect  that,  if  the  nation  were  patient 
for  a  few  years  under  James,  it  might  recover  its 
liberties  without  strife  or  peril  under  a  wiser  and  more 
temperate  successor  to  the  throne.  This  idea  might 
have  been  entertained  during  the  first  years  of  James's 
reign,  while  the  Protestant  Princess  Mary,  the  wife 
of  William  of  Orange,  was  immediate  heir  to  the 
English  Crown.  But  the  birth  (June  10th.  1688\of 
James's_son  by  his  second  Queen,  Mary  of  Modena, 
put  an  end  to  all  such  hopes  ;  and  deprived  even  the 
most  timid  conspirators  among  the  patriotic  party  of 
all  pretexts  for  delay.* 

Wifll'aWi  Prmce  of  Orange.  Stadt-Holder  and 
Captain-General  of  the  Dutch  Commonwealth,  was 
naturally  the  chief  to  whom  the  leading  men  of  the 
English  popular  party  looked  in  their  need.  To 
attempt  a  rising  without  the  aid  of  some  regular 
troops  and  a  competent  commander  would  have  been 
to  expose  themselves  and  their  untrained  followers  to 
certain  destruction  by  the  disciplined  army  of  the 
king.  An  auxiliary  force  was  needed,  not  large 
enough  to  conquer  a  great  country  like  England 
against  the  country's  will,  but  sufficient  to  form  a 

*  See  Hallam's  remarks,  "  Const.  Hist.,"  vol.  L.  p.  112. 


OF   THE   CONSTITUTION.  281 

neuclus,  round  which  the  national  levies  might  be 
raised,  and  organized  in  the  country's  cause.  It  was 
also  all-important  that  the  commander  of  that  force 
should  be  a  man  trustworthy,  not  only  in  respect  of 
military  and  political  ability,  but  also  in  respect  of 
personal  integrity,  and  of  deep  devotion  to  the  gen- 
eral cause  of  civil  and  religious  freedom.  Such  a 
man  had  William  proved  himself  from  his  youth  up. 
His  own  close  relationship  with  the  Royal  Family  of 
England,  and  his  marriage  with  the  Princess  Mary, 
gave  him  a  natural  interest  in  the  political  well-being 
of  England,  and  diminished  the  repugnance  which 
must  be  always  felt  at  calling  in  the  sword  of  the 
stranger  to  turn  the  scale  in  civil  disputes.  More- 
over, the  inferior  strength  of  Holland  relatively  to  this 
country,  and  the  deep  need  which  the  Dutch  nation 
had  that  England  should  be  free  and  great,  in  order 
to  aid  them  in  opposing  effectively  the  grasping 
ambition  of  Louis  XIV.,  were  safeguards,  in  1688, 
against  the  peril,  which  a  wronged  people  too  often 
incurs,  wheii  it  employs  foreign  aid  against  its  home 
oppressors  ; — the  peril  of  becoming  the  slaves  of  their 
allies,  and  of  purchasing  a  party-triumph  by  the 
sacrifice  of  their  country's  independence.* 

On  the  last  day  of  June,  1688,  the  cel1e'||riated  in- 
vitation signed  by  Lords  Danby,  Devonshire,  Shrews- 
bury, and  Lumley,  Admiral  Eussel,  Henry  Sidney 
and  the  Bishop  of  London,  was  sent  to  William,  on 
which  he  determined  to  commence  the  great  enter- 
prise of  his  life.  The  chief  of  the  English  Whiga 

*  The  tenth  chapter  of  Sir  James  Mackintosh's  "  View  of  the  Reign 
of  James  II.,"  contains  a  masterly  examination  of  the  causes  and  circum- 
stances by  which  alone  a  people  can  be  justified  in  taking  up  arms 
against  established  government.  Though  written  with  immediate  refer- 
ence to  the  Revolution  of  1688,  it  is  also  a  lucid  and  argumentative 
Statement  of  general  principles  on  this  all-important  point,  which  the  his- 
torical student  and  modern  politician  will  find  invaluable,  especially  with 
reference  to  the  events  of  the  "  Annns  Mirabilis,"  1848. 


282  RISE   AND   PBOGRESS 

had,  for  some  time  previously,  been  in  communication 
with  him,  and  now  the  English  Tories  and  High 
Churchmen  also  had  gradually  been  goaded  by  the 
aggressions  of  James  to  treat  the  then  present  crisis 
of  Church  and  State  as  an  exceptional  case  to  their 
favourite  maxims  of  passive  obedience  and  unlimited 
non-resistance.  On  the  other  hand,  the  Whigs  through- 
out the  great  national  movement  that  ensued,  abated 
the  violence  with  which  they  had  previously  sought  to 
carry  out  the  opposite  doctrines.  Men  of  all  ranks 
and  of  all  party  denominations  coalesced,  not  to 
introduce  new  forms  of  government,  but  to  restore  the 
English  constitutional  monarchy,  on  sure  foundations, 
and  with  new  safeguards  for  its  old  principles.  Wil- 
liam landed  at  Torbay  in  Devonshire  on  the  5th 
of  November.  There  were  soon  risings  in  his  favour 
throughout  England,  and  after  an  almost  bloodless 
march,  he  on  the  18th  of  December  entered  London, 
amid  the  rejoicings  of  the  population.  Nearly  all 
James's  followers  had  deserted  him,  many  under 
circumstances  of  disgraceful  perfidy  and  meanness ; 
James  himself  fled  in  despair  from  Whitehall  to 
Feversham  on  the  10th  of  December  ;  he  was  acci- 
dentally discovered  there  and  brought  back ;  but  on 
the  18th  he  again  left  Whitehall,  and  lingered  for  a 
few  days  at  Rochester.  But  on  the  23rd,  he  finally 
left  England,  and  fled  to  France,  where  he  landed  on 
the  last  day  of  the  year. 

On  taking  possession  of  the  capital,  William 
assembled  the  Lords  Spiritual  and  Temporal  then  in 
London,  and  also  all  gentlemen  who  had  been  mem- 
bers of  any  parliament  in  Charles  the  II.'s  reign, 
together  with  the  municipal  authorities  of  London. 
By  their  advice  and  at  their  request,  he  assumed  the 
Provisional  Government  of  the  country,  p.T}ji  issued 
fetters  summoning  a  Convention  ofjhe  estate^  of  the 
realm. 


OF   THE   CONSTITUTION.  283 

Under  these  writs  the  House  of  Lords,  consisting 
of  about  ninety  peers  and  bishops,  and  a  House  of 
Commons  regularly  elected  by  the  various  counties 
and  boroughs,  assembled  on  the  22nd  of  January, 
1689.  On  the  28th,  the  House  of  Commons  passed 
their  great  vote,  that  King  James  had  abdicated,  and 
that  the  throne  was  thereby  vacant.  The  House  of 
Lords  at  first  were  less  resolute,  and  many  of  that 
body  were  in  favour  of  appointing  a  regent,  but  con- 
tinuing the  title  of  James  as  nominal  king.  After 
long  and  interesting  discussions  on  this  and  several 
other  important  points,  the  House  of  Commons  pre- 
vailed, and  their  vote  was  assented  to  by  the  Lords. 
The  Upper  House  forthwith  passed  a  resolution  that 
the  Prince  and  Princess  of  Orange  should  be  declared 
King  anfl  Queen  of  England,,  and  all  the  dominions 
thereunto  belonging.  The  Commons  wisely  interposed 
a  solemn  declaration  of  the  people's  rights,  which  was 
subsequently  embodied  in  the  Bill  of  Bights. 

William,  on  taking  the  throne  by  virtue  of  the 
final  resolution  in  his  favour,  to  which  both  Houses 
came  on  the  13th  of  February,  1689,  summoned  a 
regular  parliament  ;  and  one  of  the  first  acts  of  that 
parliament  was  to  pass  the  great  statute  which  has 
just  been  named,  and  which  is  the  third  great  bul- 
wark of  English  liberty.  The  preamble  of  the  Bill 
of  Bights  narrates  clearly,  forcibly,  and  fully,  the 
violations  of  the  known  laws  and  free  institutions  of 
the  realm,  which  the  late  king  had  committed,  and 
establishes  guarantees  against  similar  wrongs.  I  will 
at  once  transcribe  this  most  important  of  modern 
statutes,  adding  a  few  brief  explanatory  notes  to 
gome  of  its  provisions. 


284  KISE  AND   PROGRESS 

A.N  ACT  FOR  DECLARING  THE  RIGHTS  AND  LIBERTIES  OF 
THE  SUBJECT,  AND  SETTLING  THE  SUCCESSION  OP  THE 
CROWN. 

Whereas  the  Lords  Spiritual  and  Temporal,  and  Com- 
mons, assembled  at  Westminster,  lawfully,  fully,  and  freely 
representing  all  the  estates  of  the  people  of  this  realm,  did, 
upon  the  thirteenth  day  of  February,  in  the  year  of  our 
Lord  one  thousand  six  hundred  eighty-eight,  present  unto 
their  Majesties,  then  called  and  known  by  the  names  and 
style  of  William  and  Mary,  Prince  and  Princess  of  Orange, 
being  present  in  their  proper  persons,  a  certain  declaration 
in  writing,  made  by  the  said  Lords  and  Commons,  iu  the 
words  following;  viz. — 

Whereas  the  late  King  James  II.,  by  the  assistance  of 
divers  evil  counsellors,  judges,  and  ministers  employed  by 
him,  did  endeavour  to  subvert  and  extirpate  the  Protestant 
religion,  and  the  laws  and  liberties  of  this  kingdom : — 

It,  By  assuming  and  exercising  a  power  of  dispensing 
with  and  suspending  of  laws,  and  the  execution  of  laws, 
•  without  consent  of  Parliament. 

2^  By  committing  and  prosecuting  divers  worthy  pre- 
lates, for  humbly  petitioning  to  be  excused  from  concurring 
to  the  said  assumed  power. 

3.  By  issuing  and  causing  to  be  executed  a  commission 
under  the  Great  Seal  for  erecting  a  court,  called  The  Court 
of  Commissioners  for  Ecclesiastical  Causes. 

4.  By  levying  money  for  and  to  the  use  of  the  Crown, 
by  "pretence  of  prerogative,  for  other  time,  and  in  other 
manner  than  the  same  was  granted  by  Parliament. 

ik  By  raising  and  keeping  a  standing  army  within  this 
kingdom  in  time  of  peace,  without  consent  of  Parliament, 
and  quartering  soldiers  contrary  to  law. 

C>J3y  causing  several  good  subjects,  being  Protestants, 


*  See  #/pra,  p.  259,  as  to  the  dispensing  power  exercised  by  our  early 
kings.  James  assuming  the  power  of  dispensing  generally  with  the  ob- 
ocrvance  of  a  whole  class  of  statutes  by  a  whole  class  of  people.  See  au- 
thorities as  to  the  dispensing  power  in  Amos's  "  Fortescue,"  p.  31.  Lord 
Coke,  while  admitting  the  legality  of  it  in  special  cases  and  within  par- 
ticular limits,  had  reprobated  in  the  most  forcible  manner  the  notion  that 
the  Crown  had  a  general  power  of  abrogating  or  changing  laws. 


OF    THE    CONSTITUTION.  285 

to  be  disarmed,  at  the  same  time  when  Papists  were  both 
armed  and  employed,  contrary  to  law. 

_7.  By  violating  the  freedom  of  election  of  members  to 
serve  in  Parliament. 

.81.  By  prosecutions  in  the  Court  of  King's  Bench,  for 
matters  and  causes  cognisable  only  in  Parliament;  and  by 
divers  other  arbitrary  and  illegal  courses. 

_9,  And  whereas  of  late  years,  partial,  corrupt,  and  un- 
qualified persons  have  been  returned  and  served  on  juries  in 
trials,  and  particularly  divers  jurors  in  trials  for  high  treason, 
which  were  not  freeholders. 

10.  And  excessive  bail  hath  been  required  of  persons 
committed  in  criminal  cases,  to  elude  the  benefit  of  the  laws 
made  for  the  liberty  of  the  subjects. 

^1.  And  excessive  fines  have  been  imposed ;  and  illegal 
and  cruel  punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines  and 
forfeitures,  before  any  conviction  or  judgment  against  the 
persons  upon  whom  the  same  were  to  be  levied. 

All  which  are  utterly  and  directly  contrary  to  the  known 
laws  and  statutes,  and  the  freedom  of  this  realm. 

And  whereas  the  said  late  King  James  II.  having  abdica- 
ted the  government,  and  the  throne  being  thereby  vacant, 
his  Highness  the  Prince  of  Orange  (whom  it  hath  pleased 
Almighty  God  to  make  the  glorious  instrument  of  delivering 
this  kingdom  from  popery  and  arbitrary  power)  did  (by  the 
advice  of  the  Lords  Spiritual  and  Temporal,  and  divers 
principal  persons  of  the  Commons)  cause  letters  to  be  written 
to  the  Lords  Spiritual  and  Temporal,  being  Protestants,  and 
other  letters  to  the  several  counties,  cities,  universities, 
boroughs  and  cinque-ports,  for  the  choosing  of  such  persons 
to  represent  them,  as  were  of  right  to  be  sent  to  Parliament, 
to  meet  and  sit  at  Westminster  upon  the  two-and-twentieth 
day  of  January,  in  this  year  one  thousand  six  hundred 
eighty  and  eight,  in  order  to  such  an  establishment,  as  that 
their  religion,  laws  and  liberties  might  not  again  be  in 
danger  of  being  subverted ;  upon  which  letters,  elections 
have  been  accordingly  made. 

And  thereupon  the  said  Lords  Spiritual  and  Temporal, 
and  Commons,  pursuant  to  their  respective  letters  and  elec- 
tions, being  now  assembled  in  a  full  and  free  representation 


286  RISE   AND   PROGRESS 

of  this  nation,  taking  into  their  most  serious  consideration 
the  best  means  for  attaining  the  ends  aforesaid,  do  in  the 
first  place  (as  their  ancestors  in  like  case  have  usually  done) 
for  the  vindicating  and  asserting  their  ancient  rights  and 
liberties,  declare : — 

L  That  the  pretended  power  of  suspending  of  laws,  or 
the  execution  of  laws,  by  regal  authority,  without  consent 
of  Parliament,  is  illegal. 

2.  That  the  pretended  power  of  dispensing  with  laws,  or 
the  execution  of  laws  by  regal  authority,  as  it  hath  been 
assumed,  and  exercised  of  late,  is  illegal. 

3.  That  the  commission  for  erecting  the  late  Court  of 
Commissioners  for  Ecclesiastical  Causes,  and  all  other  com- 
missions and  courts  of  like  nature,  are   illegal  and  perni- 
cious. 

4.  That  levying  money  for  or  to  the  use  of  the  Crown, 
by  pretence  and  prerogative,  without  grant  of  Parliament, 
for  longer  time  or  in  other  manner  than  the  same  is  or  shall 
be  granted,  is  illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition  the 
King,  and  all  commitments  and  prosecutions  for  such  peti- 
tioning are  illegal.* 

Of  That  the  raising  or  keeping  a  standing  army  within 
the  kingdom  in  time  of  peace,  unless  it  be  with  the  consent 
of  Parliament,  is  against  law.f 

7.  That  the  subjects  which  are  Protestants,  may  have 
arms"  for  their  defence  suitable  to  their  conditions,  and  as 
allowed  by  law.J 

8.  That  elections  of  members  of  Parliament  ought  to  be 
free. 

*  This  does  not  repeal  the  statute  of  Charles  II.  against  tumultuous 
petitioning. — See  R.  v.  Gordon,  Doug.  Rep.  592. 

f  See  Comment  on  this,  infra ;  nnd  see  Lieber,  p.  95. 

j  "  In  connection  with  the  nghts  of  personal  liberty  and  security,  is 
the  right  of  the  subject  to  carry  arms  for  his  defence,  suitable  to  his  con- 
dition and  degree,  and  such  as  are  allowed  by  law.  There  is  an  ancient 
enactment,  however  [2  Edw.  III.  c.  3],  against  going  armed  under  such 
circumstances  as  may  tend  to  terrify  the  people,  or  indicate  an  intention 
of  disturbing  the  public  peace ;  and  by  a  modern  statute  [60  Geo.  III.  a 
1]  the  training  persons  without  lawful  authority  to  the  use  of  arms  it 
prohibited,  and  any  justice  is  authorized  to  disperse  such  assemblies  of 
persona  as  he  may  find  engaged  in  that  occupation,  and  to  arrest  any  of 
the  persons  present." — Stephens'  New  Commentaries^  voL  i.  p.  140. 


OF   THE   CONSTITUTION.  287 

9^  That  the  freedom  of  speech,  and  debates  or  proceed- 
ings in  Parliament,  ought  not  to  be  impeached  or  questioned 
in  any  court  or  place  out  of  Parliament. 

1£L  That  excessive  bail  ought  not  to  be  required,  nor 
excessive  fines  imposed ;  nor  cruel  and  unusual  punishments 
inflicted. 

1L  That  jurors  ought  to  be  duly  impanelled  and  re- 
turned,  and  jurors  which  pass  upon  men  in  trials  for  high 
treason  ought  to  be  freeholders. 

12.  That  all  grants  and  promises  of  fines  and  forfeitures 
of  particular  persons  before  conviction,  are  illegal  and  void. 

IS,  And  that  for  redress  of  all  grievances,  and  for  the 
amending,  strengthening,  and  preserving  of  the  laws,  Parlia- 
ments ought  to  be  held  frequently. 

And  they  do  claim,  demand,  and  insist  upon  all  and 
singular  the  premises,  as  their  undoubted  rights  and  liber- 
ties ;  and  that  no  declarations,  judgments,  doings  or  proceed- 
ings, to  the  prejudice  of  the  people  in  any  of  the  said  prem- 
ises, ought  in  any  wise  to  be  drawn  hereafter  into  conse- 
quence or  example. 

To  which  demand  of  their  rights,  they  are  particularly 
encouraged  by  the  declaration  of  his  Highness  the  Prince 
of  Orange,  as  being  the  only  means  for  obtaining  a  full 
redress  and  remedy  therein. 

Having  therefore  an  entire  confidence  that  his  said 
Highness  the  Prince  of  Orange  will  perfect  the  deliverance 
so  far  advanced  by  him,  and  will  still  preserve  them  from 
the  violation  of  their  rights,  which  they  have  here  asserted, 
and  from  all  other  attempts  upon  their  religion,  rights,  and 
liberties : 

II.  The  said  Lords  Spiritual  and  Temporal,  and  Com- 
mons, assembled  at  Westminster,  do  resolve  that  William 
and  Mary,  Prince  and  Princess  of  Orange,  be,  and  be  de- 
clared, King  a.nd  Q"*"»>  »f  T^giomi  France  and  Ireland, 
and  the  dominions  thereunto  belonging,  to  hold  the  Crown 
and  royal  dignity  of  the  said  kingdoms  and  dominions  to 
them  the  said  Prince  and  Princess  during  their  lives,  and 
the  life  of  the  survivor  of  them;  and  that  the  sole  and  full 
exercise  of  the  regal  power  be  only  in,  and  executed  by,  the 
said  Prince  of  Orange,  in  the  names  of  the  said  Prince  and 
Princess,  during  their  joint  lives;  and  after  their  deceases, 


288  EISE   AND   PROGKESS 

I 

the  said  Crown  and  royal  dignity  of  the  said  kingdoms  and 
dominions  to  be  to  the  heirs  of  the  body  of  the  said  Prin 
cess;  and  for  default  of  such  issue  to  the  Princess  Anne  of 
Denmark,  and  the  heirs  of  her  body ;  and  for  default  of 
such  issue  to  the  heirs  of  the  body  of  the  said  Prince  of 
Orange.  And  the  Lords  Spiritual  and  Temporal,  and  Com- 
mons, do  pray  the  said  Prince  and  Princess  to  accept  the 
same  accordingly. 

III.  And  that  the  oaths  hereafter  mentioned  be  taken 
by  all  persons  of  whom  the  oaths  of  allegiance  and.  supremacy 
might  be  required  by  law,  instead  of  them ;    and  that  the 
said  oaths  of  allegiance  and  supremacy  be  abrogated. 

I,  A.  B.,  do  sincerely  promise  and  swear.  That  I  will  be 
faithful  and  bear  true  allegiance  to  their  Majesties  King 
William  and  Queen  Mary  :  So  help  me  God. 

I,  A.  B.,  do  jjjWjjar,  That  I  do  from  my  heart  abhor, 
detest,  and  abjure  as  impious  and  heretical,  that  damnable 
doetrine  and  position,  that  Princes  excommunicated  or  de- 
prived by  the  Pope,  or  any  authority  of  the  See  of  Rome, 
may  be  deposed  or  murdered  by  their  subjects,  or  any  other 
whatsoever.  And  I  do  declare,  that  no  foreign  prince, 
person,  prelate,  state,  or  potentate  hath,  or  ought  to  have, 
any  jurisdiction,  power,  superiority,  pre-eminence,  or  author- 
ity ecclesiastical  or  spiritual,  within  this  realm  : 

So  help  me  God. 

IV.  Upon  which   their  said  Majesties  did   accept  the 
crown  and    royal    dignity   of  the   kingdoms   of   England, 
France,  and  Ireland,  and  the  dominions  thereunto  belonging, 
according  to  the  resolution  and  desire  of  the  said  Lords  and 
Commons  contained  in  the  said  declaration. 

V.  And  thereupon  their  Majesties  were  pleased,  that  the 
said  Lords  Spiritual  and  Temporal,  and  Commons,  being  the 
two  Houses  of  Parliament,  should  continue  to  sit,  and  with 
their  Majesties'  royal  concurrence  make  effectual  provision 
for  the  settlement  of  the  religion,  laws  a^d  lit^i-fog  of  this 
kingdom,  so  that  the  same  for  the  future  might  not  be  in 
danger  again  of  being  subverted ;   to  which  the  said  Lords 
Spiritual  and  Temporal,  and  Commons,  did  agree  and  pro- 
ceed to  act  accordingly. 


OF   THE   CONSTITUTION.  289 

* 

VI.  Now  in  pursuance  of  the  premises,  the  said  Lords 
Spiritual  and  Temporal,  and  Commons,  in  Parliament  assem- 
bled, for  the  ratifying,  confirming  and  establishing  the  said  de« 
claration,  and  the  articles,  clauses,  matters,  and  things  therein 
contained,  by  the  force  of  a  law  made  in  due  form  by  authority 
of  Parliament,  do  pray  that  it  may  be  declared  and  enacted, 
That  all  and  singular  the  rights  and  liberties  asserted  aud 
claimed  in  the  said  declaration,  are  the  true,  ancient,  and 
indubitable  rights  and  liberties  of  the  people  of  this  king- 
dom, and  so  shall  be  esteemed,  allowed,  adjudged,  deemed, 
and  taken  to  be,  and  that  all  and  every  the  particulars  afore- 
said shall  be  firmly  and  strictly  holden  and  observed,  as  they 
are  expressed  in  the  said  declaration;  and  all  officers  and 
ministers  whatsoever  shall  serve  their  Majesties  and  their 
successors  according  to  the  same  in  all  times  to  come. 

VII.  And  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  seriously  considering  how  it  hath  pleased   Al- 
mighty  G-od,  in   his   marvellous   providence,  and  merciful 
goodness  to  this  nation,  to  provide  and  preserve  their  said 
Majesties'  royal  persons  most  happily  to  reign  over  us  upon 
the  throne   of  their  ancestors,  for  which  they  render  unto 
Him  from  the  bottom  of  their  hearts  their  humblest  thanks 
and  praises,  do  truly,  firmly,  assuredly,  and  in  the  sincerity 
of  their  hearts,  think,  and  do  hereby  recognize,  acknowledge 
and  declare,  that  King  James  II.  having  abdicated  the  gov- 
ernment, and  their  Majesties  having  accepted  the  Crown  and 
royal  dignity  as  aforesaid,  their  said  Majesties  did  become, 
were,  are,  and  of  sovereign  right  ought  to  be,  by  the  laws 
of  this  realm,  our  sovereign  liege  lord  and  lady^  King  and 
Queen  of  England,  France,  and  Ireland,  and  the  dominions 
thereunto  belonging,  in  and  to  whose  princely  persons  the 
royal  State,  Crown,  and  dignity  of  the  said  realms,  with  all 
honours,  styles,  titles,  regalities,  prerogatives,  powers,  jurisdic- 
tions and  authorities  to  the  same  belonging  and  appertaining, 
are  most  fully,  rightfully,  and  entirely  invested  and  incorpo- 
rated, united  and  annexed. 

VIII.  And  for  preventing  all  questions  and  divisions  in 
this  realm  by  reason  of  any  pretended  titles  to  the  Crown, 
aud  for  preserving  a  certainty  in  the  succession  thereof,  in 
and  upon  which  the  unity,  peace,  and  tranquillity,  and  safety 
of  this  nation  doth,  under  God,  wholly  consist  and  depend, 

13 


290  EISE   AND   PROGRESS 

the  said  Lords  Spiritual  and  Temporal,  and  Commons,  do 
beseech  their  Majesties  that  it  may  be  enacted,  established 
and  declared,  that  the  Crown  and  legal  government  of  the 
said  kingdoms  and  dominions,  with  all  and  singular  the 
premises  thereunto  belonging  and  appertaining,  shall  be 
and  continued  to  their  said  Majesties,  and  the  survivor  of 
them,  during  their  lives,  and  the  life  of  the  survivor  of  them. 
And  that  the  entire,  perfect,  and  full  exercise  of  the  regal 
power  and  government  be  only  in,  and  executed  by,  his 
Majesty,  in  the  names  of  both  their  Majesties  during  their 
joint  lives;  and  after  their  deceases  the  said  Crown  and 
premises  shall  be  and  remain  to  the  heirs  of  the  body  of  her 
Majesty;  and  for  default  of  such  issue,  to  her  Royal  High- 
ness the  Princess  Anne  of  Denmark,  and  the  heirs  of  her 
body  ;  and  for  default  of  such  issue,  to  the  heirs  of  the  body 
of  his  said  Majesty  :  And  thereunto  the  said  Lords  Spiritual 
and  Temporal,  and  Commons  do,  in  the  name  of  all  the 
people  aforesaid,  most  humbly  and  faithfully  submit  them- 
seles,  their  heirs  and  posterities  for  ever  ;  and  do  faithfully 
promise,  That  they  will  stand  to,  maintain,  and  defend  their 
said  Majesties,  and  also  the 


Crown  herein  specified  and  contained,  to  the  utmost  of  their 
powers,  with  their  lives  and  estates,  against  all  persons  what- 
soever that  shall  attempt  anything  to  the  contrary. 

IX.  And  whereas  it  hath  been  found  by  experience,  that 
it  is  inconsistent  with  the  safety  and  welfare  of  this  Protes- 
tapt  kingdomT  to  be  governed  by  a  Popish  Prince,  or  by  any 
King  or  Queen  marrying  a  Papist,  the  said  Lords  Spiritual 
and  Temporal,  and  Commons,  do  further  pray  that  it  may  be 
enacted,  That  all  and  every  person  and  persons  that  is,  are, 
or  shall  be  reconciled  to,  or  shall  hold  communion  with,  the 
See  or  Church  of  Rome,  or  shall  profess  the  Popish  religion, 
or  shall  marry  a  Papist,  shall  be  excluded,  and  be  for  ever 
incapable  to  inherit,  possess,  or  enjoy  the  Crown  and  govern- 
ment of  this  realm,  and  Ireland,  and  the  dominions  there- 
unto belonging,  or  any  part  of  the  same,  or  to  have,  use,  or 
exercise  any  regal  power,  authority,  or  jurisdiction  within 
the  same  ;  and  in  all  and  every  such  case  or  cases  the  people 
of  these  realms  shall  be  and  are  hereby  absolved  of  their 
allegiance  ;  and  the  said  Crown  and  government  shall  from 
time  to  time  descend  to,  and  be  enjoyed  by,  such  person  or 


OF   THE   CONSTITUTION.  291 

persons,  being  Protestants,  as  should  have  inherited  and 
enjoyed  the  same,  in  case  the  said  person  or  persons  sc 
reconciled,  holding  communion,  or  professing,  or  marrying  as 
aforesaid,  were  naturally  dead. 

X.  And  that  every  King  and  Queen  of  this  realm,  who 
at  any  time  hereafter  shall  come  to  and  succeed  in  tho 
Imperial  Grown  of  this  kingdom,  shall,  on  the  first  day  of 
the  meeting  of  the  first  Parliament,  next  after  his  or  her 
coming  to  the  Crown,  sitting  in  his  or  her  throne  in  the 
House  of  Peers,  in  the  presence  of  the  Lords  and  Commons 
therein  assembled,  or  at  his  or  her  coronation,  before  such 
person  or  persons  who  shall  administer  the  coronation  oath 
to  him  or  her,  at  the  time  of  his  or  her  taking  the  said  oath 
(which  shall  first  happen),  make,  subscribe,  and  audibly  re- 
peat the  H ftp.l a r af.i op  BfflBtjflBflfl, , jft ,tP°A,  flfr*ttt *r  made  in  the 
thirteenth  year  of  the  reign  of  King  Charles  II.,  intituled 
"  An  act  for  the  more  effectual  preserving  the  King's  person 
and  government,  by  disabling  Papists  from  sitting  in  either 
House  of  Parliament."  But  if  it  shall  happen,  that  such 
King  or  Queen,  upon  his  or  her  succession  to  the  Crown  of 
this  realm,  shall  be  under  the  age  of  twelve  years,  then  every 
such  King  or  Queen  shall  make,  subscribe,  and  audibly 
repeat  the  said  declaration  at  his  or  her  coronation,  or  the 
first  day  of  meeting  of  the  first  Parliament  as  aforesaid,  which 
shall  first  happen  after  such  King  or  Queen  shall  have 
attained  the  said  age  of  twelve  years. 

XL  All  which  their  Majesties  are  contented  and  pleased 
shall  be  declared,  enacted,  and  established  by  authority  of 
this  present  Parliament,  and  shall  stand,  remain,  and  be  the 
law  of  this  realm  for  ever ;  and  the  same  are  by  their  said 
Majesties,  by  and  with  the  advice  and  consent  of  the  Lords 
Spiritual  and  Temporal,  and  Commons,  in  Parliament  assem- 
bled, and  by  the  authority  of  the  same,  declared,  enacted,  or 
established  accordingly. 

XII.  And  be  it  further  declared  and  enacted  by  the 
authority  aforesaid,  That  from  and  after  this  present  session 
of  Parliament,  no  dispensation  by  noro  obstcmte  of  or  to  any 
statute,  or  any  part  thereof,  shall  be  allowed,  but  that  the 
same  shall  be  held  void  and  of  no  effect,  except  a  dispensa- 
tion be  allowed  of  in  such  statute,  and  except  in  such  cases 


292  KISE   AND    PROGRESS 

as  shall  be  specially  provided  for  by  one  or  more  bill  or  bills 
to  be  passed  during  this  present  session  of  Parliament. 

XIII.  Provided  that  no  charter,  or  grant,  or  pardon 
granted  before  the  three-and-twentieth  day  of  October,  In 
the  year  of  our  Lord  One  thousand  six  hundred  eighty-nine, 
shall  be  any  ways  impeached  or  invalidated  by  this  Act,  but 
that  the  same  shall  be  and  remain  of  the  same  force  and 
effect  in  law,  and  no  other  than  as  if  this  Act  had  never  been 
made  * 


*  The  ultra-radical  as  well  as  the  ultra-monarchical  disparagers  of 
M  the  Glorious  Revolution  "  describe  it  as  a  mere  oligarchical  movement 
It  is  well  on  this  subject  to  have  the  judgment  of  that  sagacious  investi- 
gator and  dispassionate  critic  of  our  institutions  and  history,  M.  Guizofc, 
"  It  has  often  been  said  in  France,  and  even  in  England,  that  the  Revo- 
lution of  1688  was  exclusively  aristocratic;  that  it  was  planned  and 
achieved  by  the  higher  classes  for  their  own  advantage,  and  was  not  ac- 
complished by  the  impulse  or  for  the  good  of  the  people. 

"  This  is  a  remarkable  example,  among  many  others,  of  the  confusion 
of  ideas  and  the  ignorance  of  facts  which  so  often  characterize  the  judg- 
ments passed  on  great  events. 

"  The  two  political  changes  effected  by  the  Revolution  of  1688  are  the 
most  popular  to  be  found  in  history  ;  it  proclaimed  and  guaranteed,  on 
the  one  hand,  the  essential  rights  common  to  all  citizens,  and,  on  the 
ether,  the  active  and  effectual  participation  of  the  country  in  its  own  gov- 
ernment. A  people  so  ignorant  of  its  highest  interests  as  not  to  know 
that  this  is  all  which  it  needs,  or  ought  to  demand,  will  never  be  able  to 
found  a  government  or  to  maintain  its  liberties. 

"  Considered  from  a  moral  point  of  view,  the  Revolution  of  1688  had 
a  still  more  popular  character  ;  since  it  was  made  in  the  name  and  by 
the  force  of  the  religious  convictions  of  the  nation,  and  was  designed 
principally  to  give  them  security  and  ascendancy.  In  no  country,  and  at 
no  time,  were  the  form  and  destiny  of  the  Government  more  powerfully 
influenced  by  the  prevalent  faith  of  the  governed. 

"  The  Revolution  of  1688  was  popular  in  its  principles  and  results, 
and  was  aristocratic  only  in  the  mode  of  its  execution;  the  men  of 
weight  and  mark  in  the  country  by  whom  it  was  conceived,  prepared, 
and  carried  through,  being  the  faithful  representatives  of  the  general  in- 
terests and  sentiments.  It  is  the  rare  felicity  of  England,  that  powerful 
and  intimate  ties  were  early  formed,  and  have  been  perpetuated,  among 
the  different  classes  of  society.  The  aristocracy  and  the  people  living 
amicably,  and  deriving  prosperity  from  their  union,  have  sustained  and 
controlled  each  other.  The  natural  leaders  of  the  country  have  not  held 
tlrau  selves  aloof  from  the  people,  and  the  people  have  never  wanted 
taadtjrs.  It  was  more  especially  in  1688  that  England  experienced  the 
benefit  of  this  happy  peculiarity  in  her  social  order.  To  save  her  faith, 
her  laws,  and  her  liberties,  she  was  reduced  to  the  fearful  necessity  of  a 
revolution  ;  but  she  accomplished  it  by  the  hands  of  men  disciplined  in 


OP   THE    CONSTITUTION.  «293 

The  provisions  in  the  Bill  of  Eights,  which  declare 
that  it  is  illegal  to  raise  or  keep  a  standing  aqny 
within  the  kingdom  in  time  of  peace,  unless  with 
consent  of  parliament,  deserve  particular  attention  ; 
not  only  because  they  take  away  the  ordinary  instru- 
ment of  despotism  against  freedom,  but  because  they 
insure  the  observance  of  the  great  constitutional  rule 
which  the  statute  afterwards  ordains — the  rule  that 
parliaments  ought  to  be  held  frequently.  The  main- 
tenance of  a  regularly-disciplined  force  has  long  been 
indispensable  for  the  defence  of  the  transmarine  pos- 
sessions of  England,  and  of  England  herself  from  the 
hostility  of  foreigners,  and  also  to  enable  her  to  main- 
tain her  due  degree  of  power  and  importance  in 
the  commonwealth  of  nations.  The  consequence  has 
been,  that  ever  since  the  Bill  of  Eights,  an  annual 
Act  of  Parliament  has  been  passed  authorising  the 
keeping  on  foot  a  defined  number  of  troops,  and  giv- 
ing the  Crown  the  power  of  exercising  martial  law 
over  them.  This  annual  Act  is  called  the  Mutiny 
Act.  It  endures  only  for  a  single  year ;  so  that  there 
must  be  a  session  of  parliament  every  year,  and  a  new 
Mutiny  Act  passed,  or  the  army  would  be  disband- 
ed.* In  addition  to  this  important  guarantee  for 
the  regular  meeting  of  parliament,  a  system  of  jsgj; 
tlin%  jhe  royal  revenue  was  established  in  William's 
reign,  which  necessitated  the  observance  of  the  same 
constitutional  principle.  The  House  of  Commons 
then  determined  no  longer  to  vote  to  the  Crown  cer- 
tain general  large  sums  of  revenue,  to  be  applied  to 

habits  of  order  and  experienced  in  government,  and  not  by  those  of  revo- 
lutionists. The  very  men  who  were  the  authors  of  the  change  contained 
it  within  just  limits,  and  established  and  consolidated  the  institutions  to 
which  it  gave  birth.  The  cause  of  the  English  people  triumphed  by  tho 
bands  of  the  English  aristocracy :  this  indeed  was  the  great  characteris- 
tic of  the  Revolution,  and  the  pledge  of  its  enduring  success." 

*  For  information  on  the  laws  respecting  the  marines,  the  navy,  tha 
militia,  the  yeomanry,  &c.,  see  Stephens'  "  Blackstone,"  voL  ii.  p.  566. 


294  •  EISE   AND    PEOGBESS 

particular  purposes  according  to  the  Royal  discretion, 
but  they  appropiated  specific  parts  of  the  revenue  to 
specific  purposes  of  government.  This  principle  had 
been  previously  attempted,  but  it  is  only  since  1688 
that  it  has  been  steadily  enforced.  As  Mr.  Hallam 
states,  "  The  Lords  of  the  Treasury,  by  a  clause  an- 
nually repeated  in  the  Appropriation  Act  of  every  ses- 
sion, are  forbidden,  under  severe  penalties,  to  order  by 
their  warrant  any  monies  in  the  Exchequer  so  appro- 
priated to  be  issued  for  any  other  purpose,  and  the  offi- 
cer of  the  Exchequer  to  obey  any  such  warrant.  This 
has  given  the  House  of  Commons  so  effectual  a 
control  over  the  executive  power, — or,  more  truly 
—3  speaking,  has  rendered  it  so  much  a  participation  in 
that  power,  that  no  administration  can  possibly  sub- 
sist without  its  concurrence ;  nor  can  the  session  of 
parliament  be  intermitted  for  an  entire  year,  without 
leaving  both  the  naval  and  military  force  of  the  king- 
dom unprovided  for."  * 

In  order  to  obviate  the  confusion  that  was  likely 
to  arise  as  to  the  right  to  the  Crown,  in  the  event 
(which  actually  occurred)  of  there  being  no  surviving 
issue  of  William  and  Mary,  of  the  Princess  Anne,  or 
of  William,  it  was  found  necessary,  in  1700,  to  fix 
more  definitely  the  succession  of  the  Crown,  and  it 
was  now  further  limited  to  the  Princess  Sophia,  Elec- 
tress  of  Hanover,  and  her  heirs,  she  being  grand- 
daughter of  James  I.,  and  the  next  in  succession  who 
held  the  Protestant  faith.  In  the  statute  by  which 
this  was  done,  called  the  Act  of  Settlement,  several 
very  important  constitutional  provisions  were  intro- 
duced. Eight  articles  were  inserted  in  the  Act,  which 
were  to  take  effect  from  the  accession  of  the  House  of 
Hanover. 

1.  That  whosoever  shall  hereafter  come  to  the  possession 
*  '« Const.  Hist.,"  voL  iii.  p.  159. 


OF    THE   CONSTITUTION.  295 


of  this  Crown,  shall  join  in  communion  with  the 
England,  as  by  law  established. 

2.  That  in  case  the  Crown  and  imperial  dignity  of  thia 
realm  shall  hereafter  come  to  any  person,  not  being  a  native 
of  this  kingdom  of  England,  this  nation  be  not  obliged  to 
engage   in   any  war  for  the   defence  of  any  dominions  or 
territories  which  do  not  belong  to  the  Crown  of  England, 
without  the  consent  of  Parliament. 

3.  That  no   person  who    shall  hereafter   come   to   the 
possession  of  this  Crown,  shall  go  out  of  the  dominions  of 
England,  Scotland,  or  Ireland,  without  consent  of  Parlia- 
ment. 

4.  That  from  and  after  the  time  that  the  further  limita- 
tion by  this  Act  shall  take  effect,  all  matters  and  things 
relating  to  the  well  governing  of  this  kingdom,  which  are 
properly  cognisable  in  the  Privy  Council  by  the  laws  and 
customs  of  this  realm,  shall  be   transacted  there,  and  all 
resolutions  taken  thereupon  shall  be  signed  by  such  of  the 
Privy  Council  as  shall  advise  and  consent  to  the  same. 

5.  That,  after  the  said  limitations  shall  take  effect  as 
aforesaid,  no  person  born  out  of  the  Kingdom  of  England, 
Scotland,  or  Ireland,  or  the  dominons  thereunto  belonging 
(although  to  be  naturalized  or  made  a  denizen  —  except  such 
as  are  born  of  English  parents),  shall  be  capable  to  be  of 
the  Privy  Council,  or  a  member  of  either  House  of  Parlia- 
ment, or  to  enjoy  any  office  or  place  of  trust,  either  civil  or 
military,  or  to  have  any  grants  of  land,  tenements,  or  heredit- 
aments, from   the    Crown,  to   himself,  or  to  any  other  or 
others  in  trust  for  him. 

6.  That  no  person  who  has  an  office  or  place  of  profit 
under  the  King,  or  receives  a  pension  from  the  Crown,  shall 
be  capable  of  serving  as  a  member  of  the  House  of  Com- 
mons. 

7.  That,  after  the  said  limitation   shall   take   effect   as 
aforesaid,  judges'  commissions  be  made   quamdiu  se  beng 
gesserint,  and   their   salaries   ascertained   and  established; 
out  upon  the  address  of  both  Houses  of  Parliament,  it  may 
be  lawful  to  remove  them. 

8.  That  no  garden  under  the  Great  Seal  of  England  be 
pleadable  to  au  impeachment  by  the  Commons  in  Parliament 


296  EISE   AND   PROGRESS 

Some  of  these  provisions  require  a  little  comment 
:      and  explanation. 

The  second,  third,  and  fifth  were  obviously  caused 

^     by  the  jealousy  that  was  felt  of  a  new  and  foreign 

t      dynasty.      The   third,   which   sought   to   impose   so 

^     marked  a  restraint  on  the  personal  freedom  of  the 

sovereign,  was  repealed  in  the  very  first   year  after 

\£     George  I.  became  king.     The  fourth  was  designed  to 

^  ^  be  a  far  more  important  constitutional  regulation,  and 

it  draws  our  attention  again  to  the  subject  of  the 

king's  Consilium  Ordinarium,  or  Privy  Council,  which 

has  been  spoken  of  at  an  earlier  part  of"  this  work.* 

It  has  there  been  pointed  out  that  our  sovereigns 
\S  had  their  regular  Council,  consisting  of  the  chief 
officers  of  State,  and  of  such  persons  as  the  king 
thought  fit  to  summon.  They  took  an  oath  of  fideli- 
ty and  secrecy,  and  these  were  the  king's  privy 'coun- 
cillors. The  obnoxious  judicial  power  which  was 
practised  first  by  the  Council,  and  afterwards  by  a 
portion  of  it  organized  as  the  Court  of  Star  Chamber, 
has  also  been  referred  to.  The  abolition  of  this  tri- 
bunal did  not  interfere  with  the  existence  of  the  Privy 
Council  in  its  natural  and  legitimate  capacity. 

The  number  of  the  privy  councillors  was  gradually 
found  inconvenient  for  practical  government,  and  the 
custom  grew  up  of  a  few  members  of  it,  who  really 
were  the  active  and  confidential  ministers  of  the 
Crown,  deliberating  apart.  This  select  body  acquired 
the  name  of  the  "  Cabinet  Council."  with  which  we 
are  all  practically  familiar,  though  the  term  "  Cabi- 
net Minister"  is  unknown  in  constitutional  forms. 
For  some  time  it  appears  to  have  been  usual  for  the 
Cabinet  Council,  when  they  had  resolved  upon  a 
measure,  to  lay  it  before  the  Privy  Council  for  their 
assent  and  adoption,  but  no  further  discussion  took 

*  Sec  p.  238,  tupra. 


OF   THE    CONSTITUTION.  297 

place,  and  the  ratification  was  a  mere  formality.  Out 
of  a  desire  to  ascertain  more  easily  the  main  individ- 
ual promoters  and  advisers  of  State  measures,  it  was 
endeavoured  in  the  Act  of  Settlement  to  revive  the 
old  system,  to  compel  the  discussion  of  all  State  af- 
fairs in  full  Privy  Council,  and  to  discriminate  be- 
tween those  who  promoted  and  those  who  dissuaded 
each  resolution,  by  making  all  who  voted  for  it  sign 
their  names  to  it.  It  was,  however,  soon  perceived 
that  this  system  would  cause  infinite  delay  and  em- 
barrassment in  governing  the  kingdom,  and  the  clause 
was  repealed  by  a  statute  in  Queen  Anne's  reign,  be- 
fore the  time  when  its  provisions  were  to  have  come 
into  operation.* 

The  practice  above  referred  to,  of  summoning  all 
the  Privy  Council  to  adopt  and  ratify  the  previously- 
arranged  measures  of  the  Cabinet,  has  also  long  be- 
come obsolete.  And  it  is  correctly  stated f  that  "the 
office  of  privy  councillor,  as  distinct  from  cabinet 
minister,  is  now  little  more  than  a  titular  distinction, 
conferring  the  title  of  right  honourable  on  the  bearer 
of  it."  Eoyal  proclamations  and  orders  still  emanate, 
as  the  law  requires,  from  the  Privy  Council,  but  by 
long-established  usage  no  privy  councillor  attends, 
unless  especially  summoned.  Each,  however,  though 
he  be  not  a  cabinet  minister,  and  though  he  be  in 
actual  opposition  to  the  ministry  of  the  day,  has  the 
right  of  attending,  and  that  right  was  exercised  in  a 
very  memorable  and  important  crisis  in  our  constitu- 
tional history,  when  Queen  Anne  was  on  her  deathbed, 
and  when  the  Dukes  of  Argyll  and  Somerset  suddenly 
appeared  in  the  council-chamber  at  Kensington  Pal- 
ace, and  disconcerted  all  the  measures  of  Bolingbroke 


*  See  Hallam's  "  Constitutional  History,"  vol.  iii.  p.  249. 
f  "  Pictorial  History  of  England,"  voL  iv.  p.  672. 

13* 


,298  BISE  AND   PROGRESS 

and  his  coadjutors,  for  bringing  in  the  Pretender  after 
the  queen's  decease.* 

The  sixth  article  in  the  Act  of  Settlement  waa 
designed  to  put  a  stop  to  the  rapidly-increasing  influ- 
ence which  the  Crown  was  acquiring  over  the  House 
of  Commons,  by  being  able  to  confer  places  and  pen- 

^  sions  on  its  members.  This  power  had  been  made  an 
engine  of  extensive  and  grievous  corruption  during  the 
last  bad  reigns,  and  had  excited  just  popular  indigna- 
tion. But  the  framers  of  the  Act  of  Settlement, 
though  laudably  anxious  to  check  this  abuse,  went  into 
the  opposite  extreme,  which  Mr.  Hallam  truly  calls 

5      "the  preposterous  extremity  of  har^hing  ^.]|  ftyryftflt" 
nf  t,l|f>  Drown  from  the  House  of  Commons." 

This  sweeping  clause  of  theTAct  of  Settlement 


*  For  the  present  practical  power  of  the  Privy  Council,  their  jurisdic- 
tion in  inquiring  into  State  offences  and  committing  for  trial,  and  the 
important  functions  that  several  modern  statutes  have  vested  in  a  portion 
of  the  Council,  called  the  "Judicial  Committee  of  the  Privy  Council," 
jee  Bowyer's  "  Commentaries  on  the  Constitution,"  p.  126.  It  has  been 
•rientioned  in  the  text  that  the  queen's  orders  and  proclamations  are  issued 
in  Privy  Council.  This  is  in  several  cases  required  and  authorized  by 
statute  ;  but  the  sovereign  has  also  a  general  constitutional  prerogative 
of  issuing  proclamations,  which  is  vested  in  the  sovereign  alone,  though 
exercised  by  the  sovereign  in  and  by  the  advice  of  her  Council.  Mr. 
Bowyer  observes  as  to  this  part  of  the  prerogative,  "  These  proclamations 
have  then  a  binding  force,  when  (as  Sir  Edward  Coke  observes)  they  are 
grounded  upon  and  enforce  the  laws  of  the  realm.  For  though  the  mak- 
ing of  laws  is  entirely  the  work  of  a  distinct  part — the  legislative  branch 
of  the  sovereign  power — yet  the  manner,  time,  and  circumstances  of  put- 
ting those  laws  into  execution  must  frequently  be  left  to  the  discretion  of 
the  executive  magistrate ;  and  therefore  his  constitutions  or  edicts  con- 
cerning these  points,  which  we  call  proclamations,  are  binding  upon  tho 
subject,  while  they  do  not  either  contradict  the  old  laws  or  tend  to  estab- 
lish new  ones,  but  only  enforce  the  execution  of  such  laws  as  are  already 
in  being,  in  such,  manner  as  the  queen  shall  judge  necessary.  Thus  the 
established  law  is  that  the  queen  may  prohibit  any  of  her  subjects  from 
leaving  the  realm  ;  a  proclamation,  therefore,  forbidding  this,  in  general 
for  three  weeks,  by  laying  an  embargo  upon  all  shipping  in  the  time  of 
war,  will  he  equally  binding  as  an  Act  of  Parliament,  being  founded  on 
a  prior  law."  See  also  Hallam's  Constitutional  History,  voL  i.  p.  457,  ct 
seq.,  and  Coke's  Reports,  12,  cited  by  Mr.  Hallam  in  his  note  at  p.  453 
of  the  same  volume. 


OF   THE   CONSTITUTION.  299 


never  came  into  operation.  Tt..?g9fl.  rpppi^^  m  the 
fourth  year  of  Anne's  reign.  Another  Act  on  the 
subject  was  passed  in  the  same  reign,  by  which  every 
member  of  the  House  of  Commons,  accepting  an  of- 
fice under  the  Crown,  except  a  higher  commission  hi 
the  army,  must  vacate  his  seat,  but  may  be  re-elect- 
ed ;  and  by  which,  also,  persons  holding  offices  creat- 
ed since  the  25th  of  October,  1705,  were  incapaci- 
tated from  being  elected  or  re-elected  members  of 
parliament.  The  statute  excluded  at  the  same  time 
all  such  as  held  pensions  during  the  pleasure  of  the 
Crown  ;  and,  to  check  the  multiplication  of  placemen, 
it  was  enacted,  that  no  greater  number  of  commis- 
sioners should  be  appointed  to  execute  any  office,  than 
had  been  employed  in  its  execution  at  some  time 
before  that  parliament. 

The  seventh  article  of  the  Act  of  Settlement, 
that  which  provides  for  the  independence  of  the 
judges,  is  the  most  important  of  all.  The  Stuart 
kings  had  been  in  the  habit  of  systematically  packing 
the  bench,  in  order  to  secure  decisions  favourable  to 
the  Crown,  on  all  points  of  law;  and  in  order  also 
that  unscrupulous  partizans  of  the  Court  should  pre- 
side at  all  State  trials,  and  work  out  the  royal  partial- 
ities and  hatreds.  Men  who  showed  any  independence 
in  such  matters,  or  who  were  known  to  be  opposed  to 
the  views  of  the  Court,  were  summarily  dismissed 
from  the  bench,  and  more  obsequious  tools  of  the 
Government  were  appointed  on  the  eve  of  any  im- 
portant judicial  proceeding.  While  this  could  be 
done,  the  liberties  of  the  subject  were  never  safe. 
There  was  not  one  that  might  not  be  brought  in 
some  form  before  a  court  of  law,  to  be  upheld  or  nul- 
lified ;  and  the  sovereign  who  could  garble  at  his  will 
the  administration  of  the  laws,  needed  care  little  who 
made  them.  Without  open  violence,  it  was  always  in 
his  power,  "  constitutionally  to  ruin  the  constitu- 


300  RISE   AND  PKOGBESS 

tion."  *  The  Act  of  Settlement  gave  the  remaining 
necessary  bulwark  to  our  national  freedom,  when  it 
made  the  judges  irremovable,  except  on  the  joint  re- 
quirement of  both  Houses  of  Parliament ;  and  when 
also,  by  requiring  their  salaries  to  be  fixed  and  ascer- 
tained, instead  of  depending  on  the  caprice  of  the 
Crown,  it  freed  them  from  all  influence,  and  from  all 
suspicion  of  being  under  the  influence  of  corruption 
or  intimidation. 

It  is  to  be  observed  that  the  Act  of  Settlement, 
while  it  gave  a  new  dynasty  the  right  to  reign  in 
England,  solemnly  acknowledged  on  that  solemn  occa- 
sion the  existence  and  authority  of  all  the  subjects' 
rights.  The  conclusion  of  the  Act  of  Settlement  is 
asfbliows  : — 

"  IV.  And  whereas  the  laws  of  England  are  the 
birthright  of  the  people  thereof,  and  all  the  kings  and 
queens  who  shall  ascend  the  throne  of  this  realm 
ought  to  administer  the  government  of  the  same  ac- 
cording to  the  said  laws,  and  all  their  officers  and 
ministers  ought  to  serve  them  respectively  according 
to  the  same ;  the  said  Lords  Spiritual  and  Temporal, 
and  Commons,  do  therefore  further  humbly  pray, 
That  all  the  laws  and  statutes  of  this  realm  for  secur- 
ing the  established  religion,  and  the  rights  and  liber- 
ties _of_thfi_.j)eople-  thereof,  and  all  other  laws  and 
statutes  of  the  same  now  in  force,  may  be  ratified  and 
confirmed,  and  the  same  are  by  his  Majesty,  by  and 
with  the  advice  and  consent  of  the  said  Lords  Spirit- 
ual and  Temporal,  and  Commons,  and  by  authority 
of  the  same,  ratified  and  confirmed  accordingly." 

It  would  be  superfluous  to  point  out  categorically 
how  completely  this  Act,  the  Petition  of  Eight,  and 
the  Bill  of  Rights,  recognize  and  confirm  the  primary 
great  constitutional  principles  which  the  Great  Char- 

*  The  phrase  is  Vergniaud's. 


OF   THE   CONSTITUTION.  301 

ter  first  established.  But,  before  proceeding  to  the 
Reform  Bill  of  1832  (which  seems  next  in  constitu- 
tional importance),  it  may  be  useful  to  consider  shortly 
r,he  actual  state  of  the  English  Government  and  na- 
tion soon  after  the  Eevolution  of  1688,  and  during 
the  early  part  of  the  last  century. 

With  the  expulsion  of  the  Stuarts,  the  long  strug- 
gle between  the  king  and  the  people  ended  :  and  the 
substitution  on  the  English  throne  of  a  line  of  prin- 
ces, who  derived  their  title  confessedly  through  the 
nation's  will,  extinguished  all  those  absurd  dogmas  as 
to  the  right  divine  of  kings,  the  patriarchal  principle 
of  government,  the  duty  of  the  subject  to  submit  to 
all  royal  orders,  and  the  like,  which  had  previously 
been  never-failing  pretexts  for  sanctioning  or  excusing 
violations  of  constitutional  right,  and  graspings  after 
absolute  power.  Indeed,  since  the  reign  of  William, 
the  royal  heads  of  our  limited  monarchy  have  exercised 
comparatively  Httle_j3ersonal  interference  in  State 
affairs.  Our  kings  and  queens  have  carried  on  the 
government  of  the  country  through  ministers,  who 
have  been,  and  necessarily  must  be,  dependent  on 
parliament  for  their  tenure  of  office.  Not  that  the 
personal  opinions  or  character  of  the  sovereign  of  this 
country  ever  can  be  unimportant.  "  His  habits  and 
tastes  are  always  matters  of  notoriety,  and  often  of 
imitation.  Access  to  his  society  is  always  coveted. 
He  may  give  that  access  in  a  manner  useful,  or  mis- 
chievous,  or  absolutely  indifferent.  He  may  call  to  his 
Court  those  who  are  most  distinguished  by  genius  or 
by  knowledge  ;  or  those  whose  only  merit  is  their  birth 
or  their  station ;  or  parasites,  buffoons,  or  profligates. 
Even  in  the  appointment  of  ministers,  he  may  some- 
times exercise  a  sort  of  selection.  He  is  sometimes 
able  to  delay,  for  a  short  period,  the  fall  of  those 
whom  he  likes,  and  the  accession  of  those  whom  he 


302  RISE   AND   PKOGRESS 

dislikes ;  and  he  can  sometimes  permanently  exclude 
an  individual."  * 

He  can,  indeed,  do  more  than  this,  provided  par- 
ties are  nearly  balanced  in  the  countiy.  In  such  a 
state  of  things  the  personal  adherents  of  the  sovereign 
(and  a  band  more  or  less  numerous  of  such  there  will 
always  be)  can  turn  the  scale,  and  determine  the 
adoption  or  rejection  of  measures  of  the  greatest  mo- 
ment both  in  foreign  and  domestic  policy.  The  influ- 
ence exercised  by  George  III.,  in  very  critical  times, 
by  means  of  "  the  king's  friends"  is  notorious.  The 
power  of  dissolving  parliament  is  also  a  strong  engine 
in  the  sovereign's  hands,  whereby  he  may  protect  him- 
self from  ministers  personally  distasteful  to  him,  and 
gain  at  least  the  chance  of  seeing  a  House  of  Com- 
mons returned,  whose  feelings  may  harmonise  with  his 
own.  But  if  the  national  will,  as  expressed  by  the 
two  legislative  assemblies,  is  decided  and  strong  on 
one  side  of  a  question,  and  if  a  dissolution  of  parlia- 
ment only  causes  a  solemn  popular  ratification  of  the 
expression  of  that  will  in  the  house  of  Commons,  the 
sovereign  is  powerless  to  oppose  it.  Unless  parlia- 
ment passes  the  customary  annual  Mutiny  Bill,  and 
unless  it  gives  the  customary  annual  votes  for  pecu- 
niary supplies,  the  armed  forces  of  the  State  must  be 
disbanded,  and  the  whole  machinery  of  government 
must  be  stopped. 

i*  The  principle  that  our  monarchy  is  hereditary,  has 
been  maintained  in  practice  ever  since  the  accession 
of  the  House  of  Hanover,  and  there  is  every  cause  to 
hope  and  believe  that  it  long  will  be  so.  We  all  feel 
(as  Cromwell  was  warned  that  our  ancestors  felt)  that 
our  old  limited  hereditary  monarchy  is  a  blessing  to 
the  country,  if  it  be  only  on  account  of  the  quiet  and 
good  order  which  its  principle  of  succession  insures, 

*  Edinburgh  Review  of  Lord  Brougham's  "  Political  Philosophy." 


OF    THE   CONSTITUTION.  303 

compared  with  the  mischief  which  would  follow,  if 
the  post  of  chief  magistrate  among  us  were  to  be  in- 
trigued for  by  the  ringleaders  of  clubs,  or  fought  for 
by  ambitious  soldiers.  It  is,  of  course,  impossible  to 
secure  a  succession  of  good  and  wise  princes  ;  nor  can 
human  foresight  calculate  when  a  Marcus  Aureliua 
will  be  followed  by  a  Commodus.  Hence,  our  consti- 
tution is  rightly  cautious  ***A  remkantivp.  It  is  framed 
not  for  a  single  generation,  or  with  reference  to  the 
personal  qualities  of  a  particular  ruler,  but  it  is  the 
fruit  of  the  experience  of  many  ages,  and  is  designed 
for  duration  and  permanence.  It  therefore  provides 
checks  and  securities  against  the  ambition,  and  pas- 
sions, and  weaknesses  of  human  nature ;  and  it  fixes 
limitations  sufficient  to  secure  a  large  amount  of  good 
government,  and  to  protect  liberty,  even  under  a  bad 
prince.*  But  it  leaves  open  a  large  field  for  the  exer- 
cise of  the  virtues  of  a  good  one.  The  constitutional 
sovereigns  of  England  who  understand  and  act  up  to 
their  true  political  duties,  without  seeking  to  overstep 
them  ;  who  also  employ  the  high  influence  of  their 
station  and  example  for  the  encouragement  of  social 
and  domestic  virtue,  for  the  advancement  of  learning 
and  the  well-judged  patronage  of  art,  earn  nobly  the 
gratitude  of  the  people  :  and  that  debt  would  be  paid 
honestly,  if  requisite,  in  act  as  well  as  in  feeling.  No 
one  who  did  duty  on  the  ever-memorable  10th  of 
April.  1848.  will  forget  how  far  personal  enthusiasm 
for  our  thoroughly  English-hearted  queen  was  com- 
bined on  that  day  with  zeal  for  constitutional  order, 
in  producing  the  majestic  manifestation  of  true  public 
opinion,  and  in  putting  down  the  mischievous  schemes 


*  See  Bolingbroke.  voL  i.  p.  60,  and  some  very  beautiful  remarks  of 
the  American  statesman  Webster,  on  the  jealous  spirit  of  Constitutions} 
Liberty,  in  Lieber,  on  "  Civil  Liberty  and  Self-Govermnent,"  p.  124 
Professor  Lieber's  own  comments  well  deserve  perusal. 


304  RISE   AND    PROGKESS 

to  imitate  foreign  revolution,  which  some  misguided 
men  then  attempted. 

Our  House  of  Lords,  at  ihe  revolution  of  1688, 
consisted  of  about  150  temporal  Peers,  and  26  bish- 
ops. I  have  before  indicated  the  causes  that  originally 
made  the  English  an  hereditary  ppRmore :  and  gradu- 
ally it  became  a  fixed  maxim  that  the  individual 
whom  the  sovereign  summoned  by  his  royal  writ  to 
the  House  of  Lords,  acquired  thereby  not  only  the 
right  to  sit  in  the  particular  parliament  during  which 
the  writ  issued,  but  a  right  for  himself  and  heirs 
to  become  and  be  thenceforth  a  peer  of  the  realm. 
Thenceforth  every  peer  of  full  age  has  been  held  enti- 
tled to  his  writ  of  summons  at  the  commencement 
of  every  parliament.  But  although  it  is  not  in  the 
power  of  the  Crown  to  sway  the  deliberations  of  the 
House  of  Lords  by  excluding  old  peers,  the  preroga- 
tive of  creating  new  temporal  peers  at  discretion  has 
been  retained  by  the  Crown,  both  before  and  after  the 
Revolution,  though  a  strong  effort  was  made  in  George 
I/s  reign  to  cut  down  this  important  constitutional 
prerogative.  A  bill  limiting  the  House  of  Lords  after 
a  very  small  increase  should  have  been  made  to  its 
then  actual  members,  was  brought  in  by  Lord  Sunder- 
land's  ministry,  and  carried  easily  through  the  Upper 
House,  but  lost  in  the  Commons,  fortunately  for  the 
interest  of  all  orders  in  the  State,  but  especially  for 
the  permanent  interest  and  existence  of  that  very 
body,  which  the  bill  was  designed  with  short-sighted 
policy  to  strengthen. 

The  House  of  Lords  would  then  have  been  free 
from  all  constitutional  check ;  whereas,  now  the  pre- 
rogative of  the  Crown  in  making  new  peers  is  an 
effective  controlling  power.  When  this  is  borne  in 
mind,  and  when  it  is  remembered  also  to  how  large  an 
extent  the  Upper  House  is  continually  recruited  from 
the  commonalty ;  how  a  peerage  is  the  stimulus^  for 


OF    THE   CONSTITUTION.  305 

energy  and  the  valued  prize  of  eminence ;  there  are 
few  or  none  but  will  rejoice  in  the  permanence  and 
desire  the  stability  of  our  House  of  Lords.  Men  of 
Conservative  principles  will  naturally  cling  to  "the 
peers  of  England,  pillars  of  the  State."  And  even 
the  most  vehement  Reformer  must,  on  reflection,  feel 
their  value.  The  necessity  of  a  second  legislative 
chamber  is  almost  universally  admitted ;  *  nor  could  a 
speculator  frame  one  that  would  work  better  than  our 
present  peerage.  Such  a  second  chamber,  in  order  to 
be  of  the  least  use,  must  not  be  a  mere  duplicate  of 
the  House  of  Commons ;  but  must,  if  elective,  be, 
like  the  American  Senate,  chosen  by  a  more  limited 
and  opulent  body  of  voters  than  that  which  elects  the 
House  of  Commons.  But  it  is  self-evident  that  in 
this  country  an  Upper  House,  elected  solely  by  the 
wealthy  class  of  the  community,  would  be  infinitely 
more  oligarchical  and  obstructive  to  reform,  than  the 
House  of  Lords  has  ever  been. 

The  House  of  noTm-nona  p,f)pt,ipi]pd  to  consist  of 
knights  of  the  shires,  and  representatives  of  the  cities 
and  boroughs.  The  introduction  of  members  for  the 
Universities  of  Oxford  and  Cambridge  can  hardly  be 
considered  material  in  point  of  number,  though  it 
may  furnish  an  important  precedent  for  the  applica- 
tion of  the  principle  of  educational  representation. 
The  mode  in  which  particular  boroughs  acquired,  lost, 
or  regained  the  right  of  sending  representatives,  has 
become  a  topic  of  comparatively  little  practical  inter- 
est since  the  Eeform  Bill.  It  seems  probable  that 
under  the  Plantagenets  every  town  of  any  consequence 
received  a  writ  directing  it  to  return  burgesses  to  par- 
liament ;  but  it  is  clear  that,  from  the  commencement 
of  our  representative  system,  some  very  inconsiderable 
places  returned  members.  Sometimes  the  negligence 

*  See  note  at  p.  178  for  the  valuable  observations  of  Professor  Liebei 
on  this  necessity  for  a  second  chamber. 


306  RISE   AND   PROGRESS 

or  partiality  of  the  sheriffs  omitted  towns  that  had 
formerly  received  writs ;  and  frequently  new  boroughs, 
as  they  grew  into  importance,  or  from  some  private 
motive,  acquired  the  right  of  representation.  Grad- 
ually it  became  a  recognised  principle,  that  the  right 
of  a  borough  to  return  members,  having  once  existed, 
can  never  be  lost :  and  the  111  cities  and  towns  which 
returned  members  at  the  accession  of  Henry  VIII. 
continued  to  exercise  their  privilege  down  to  1832. 

We  have,  in  a  previous  chapter,  examined  the 
subject  of  who  were  the  electors  in  the  boroughs  in 
early  times ;  and  it  has  been  pointed  out  that,  as  the 
power  of  the  House  of  Commons  increased,  the  com- 
position of  the  electoral  bodies  became  an  object  of 
growing  attention  to  the  Crown  ;  and  especially  un- 
der the  last  Tudors  and  the  Stuarts,  sedulous  efforts 
were  made  to  mould  and  influence  the  municipal 
composition  of  those  parliamentary  boroughs  which 
were  also  corporate  cities  and  towns.  By  machina- 
tions of  this  kind,  by  the  silent  effect  of  "  the  great 
innovator,  Time,"  in  reducing  many  places  which  had 
once  been  populous  into  wretched  hamlets,  and  by 
many  boroughs  having  (as  has  before  been  mentioned) 
been  originally  selected  by  the  Crown  to  return  mem- 
beis  on  account  of  their  liability  to  Crown  influence,* 
a  large  number  of  the  parliamentary  boroughs  became 
the  mere  instruments  of  powerful  individuals,  who 
owned  the  few  houses  hi  them  which  gave  a  right  of 
voting,  or  who  purchased  the  suffrages  of  a  little 
clique  of  self-elected  electors.  These  close,  or  ro_t£ejL 
boroughs  as  they  were  familiarly  termed,  gave  great 

*  The  latest  instance  of  the  Crown  creating  a  borough  with  a  right  to 
send  members,  was  in  Charles  II.'s  reign.  This  caused  some  little  debate 
in  the  Commons,  but  was  ratified  by  them.  The  Commons,  in  subsequent 
reigns,  would,  unquestionably,  have  resisted  any  further  exercise  of  this 
power,  "  on  the  broad  maxim  of  having  exclusive  privilege  in  matters 
relating  to  their  own  body,  which  the  House  was  become  powerful  enough 
to  assert  against  the  Crown." — See  Hallam. 


OF   THE   CONSTITUTION.  307 

facilities  for  the  increase  of  the  indirect  influence  of 
the  Crown,  but  they  also  favoured  the  ambition  of 
wealthy  subjects  ;  and  it  is  to  be  borne  in  rnind  that 
they  peculiarly  aided  the  efforts  of  the  commercial 
classes  to  raise  themselves  into  an  equality  with  the 
territorial  aristocracy.*  This  .last,  the  l 


est,  made,  in  the  ninth  year  of  Queen  Anne,  a  great 
struggle  to  seqjre  its  *tyjuwn<|ftTi<*y  by  excluding  the 
rest  of  the  community  from  parliament.  With  this 
view  the  landed  gentry  obtained  the  passing  of  an  Act 
by  which  every  member  of  the  Commons,  except 
those  for  the  universities,  was  required  to  possess,  if  a 
knight  of  the  shire,  a  freehold  or  copyhold  estate  of 
clear  600£.  per  annum,  and,  if  representative  of  a 
borough,  a  like  landed  qualification  to  the  amount  of 
300?.  per  annum.  It  has  been  shown  that  the  old 
statute  of  Henry  VI.,  requiring  county  representatives 
to  be  chosen  from  "  notable  knights,  or  such  as  shall 
be  able  to  be  knights,"  had  fallen  into  desuetude  ;  and 
the  new  law  went  far  beyond  it,  and  would,  if  effec- 
tually carried  out,  have  converted  our  House  of  Com- 
mons into  an  odious  deputation  of  landed  oligarchs. 
This  laWj  however,  has  been  systematically  fiyafod-, 
nor  are  the  provisions  of  the  modern  statute,f  which 
has  made  personal  as  well  as  real  property  .qualify  its 
owner  for  parliament,  much  more  efficacious  in  attain- 
ing the  only  proper  object  of  such  restrictions,  that, 
namely,  of  preventing  needy  adventurers  from  obtain- 
ing seats  in  the  House.  Neither  of  these  Acts  having 
required  a  member  to  possess  the  stipulated  qualifica- 
tion during  all  the  time  that  he  continues  to  be 
member,  it  always  has  been  and.  is  enough  to  procure 
for  the  occasion  a  colourable  transfer  from  some  person 
who  really  holds  the  requisite  property,  which  transfer 


*  See  Hallam's  "  Constitutional  History,"  vol.  iii.  p.  402. 

*  1  &  2  Viet  c.  48. 


308  EISE   AND   PROGRESS 

is  cancelled  or  reversed  directly  the  member  has  taken 
his  seat.  This  practice  may  be  almost  said  to  have 
received  the  sanction  of  the  Legislature  by  what  took 
place  when  the  33  Geo.  II.  c.  30,  was  passed.  That 
statute,  which  first  made  it  necessary  for  the  newly- 
elected  member  to  swear  to  his  qualification  on  taking 
his  seat,  contained,  when  it  was  first  brought  forward, 
a  clause  requiring  every  member  who  should  at  any 
time  during  the  continuance  of  the  parliament  to 
which  he  was  elected,  sell,  dispose  of,  alien,  or  in  any 
wise  encumber  the  estate  which  made  his  qualifica- 
tion, to  deliver  in  on  oath  a  statement  for  a  new  or 
further  qualification  before  he  should  again  presume 
to  sit  or  vote  as  a  member  of  the  House  of  Commons. 
But  the  Legislature  rejected  this  clause;  and  thus 
deliberately  sanctioned  the  system  by  which  men  of 
no  property,  but  who  can  find  wealthy  friends  with 
confidence  in  their  honour,  obtain  seats  as  English 
members.f 

The  laws  which  regulate  the  duration  _of  parlia- 
ment, belong  also  to  the  period  between  the  Eevolu- 
tion  and  the  accession  of  George  III.  ;  and  are  not 
only  of  great  constitutional  importance,  but  have 
given  rise  to  one  of  the  practical  political  questions 
of  the  present  time.  There  is  an  ancient  statute  of 
Edward  II.'s  reign  (5  Edw.  II.  c.  29*),  which  is  prin- 
cipally a  confirmation  of  Magna  Carta,  but  which 
contains  at  its  close  the  following  additional  provis- 
ions : — "  Forasmuch  as  many  people  be  aggrieved  by 
the  king's  ministers  against  right,  in  respect  to  which 
grievances  no  one  can  recover  without  a  common  par- 
liament; we  do  ordain  that  the  king  shall  hold  a 
parliament  once  in  the  year,  or  twice  if  need  be/' 
And  a  statute  of  the  next  reign  (4  Edw.  III.  c.  14) 


*  See  Smollett's  History  of  England,  book  iii.  c.  13,  sect.  56. 
Statutes  of  the  Realm,  i.  165. 


OF    THE    CONSTITUTION.  309 

ordains  that  "  a  parliament  shall  be  holden  every  year 
once,  and  more  often  if  need  be."  These  Acts  are 
generally  supposed  to  have  only  provided  that  there 
should  be  an  annual  meeting  of  parliament,  and  not 
that  there  should  be  a  new  parliament  every  year, 
Certainly  these  statutes  had  been  in  either  sense  little 
heeded  in  practice,  and  there  was  no  explicit  enact- 
ment as  to  how  often  there  should  be  a  new  parlia- 
ment until  the  Triennial  Bill  of  1642  was  passed  by 
the  Long  Parliament.  After  the  Kestoration  this 
salutary  statute  was  repealed  at  the  king's  special 
request ;  and  one  of  Charles  II/s  parliaments,  which 
was  found  eminently  loyal  and  corruptible,  was  pro- 
longed in  mischievous  existence  for  the  enormous 
period  of  seventeen  years.  In  the  year  after  the 
Great  Kevolution  a  bill  was  brought  in  and  passed 
both  Houses  to  limit  the  duration  of  parliament  to 
three  years.  King  William  refused  his  assent  to  it ; 
but  the  Commons  renewed  their  exertions ;  the  re- 
peated exercise  of  the  royal  veto*  would  have  been 
perilous  to  its  possessor,  and  a  Trjfip-ma.1  Bill  became 
law  in  1694.  But  in  1717  it  was  deemed  unsafe  by 
the  ministers  of  the  newly-arrived  Hanoverian  king 
to  risk  a  general  election,  and  the  celebrated  Septen- 
nial Act  was  passed,  which  has  hitherto  stood  firm 
againsfthe  repeated  attempts  that  have  been  made 
to  obtain  a  return  to  triennial  parliaments. 

Not  wishing  to  complicate  this  work  by  the  dis- 
cussion of  Scotch  or  Irish  topics,  I  purposely  pass 
over  the  Act  of  Union  with  Scotland,  passed  A.D. 
1707,  as  I  shall  presently  pass  over  the  similar  Act 
with  regard  to  Ireland,  passed  A.D.  1800. 

The  influence  of  the  middle  ...classes,  which  had 

*  See  Lieber,  p.  163,  and  Tremenheere  on  the  American  and  English 
Constitutions,  p.  168,  for  some  instructive  remarks  on  the  disuse  of  the 
royal  veto  in  England  since  William  III.'s  reign,  compared  with  its  fre» 
exercise  by  the  American  Presidents. 


310  EISE   AND   PBOGRESS 

been  greatly  developed  and  augmented  during  the 
period  between  the  Great  Ke  volution  and  the  acces- 
sion of  George  III.,  increased  in  a  rapidly-accelerated 
ratio  during  the  long  and  eventful  reign  of  the  last- 
mentioned  sovereign. 

The  extension  of  commerce  and 


after  the  treaty  of  Pans,  in  1763,  was  rapid  and  un- 
precedented. Large  manufacturing  and  commercial 
towns  arose  in  all  parts  of  the  country,  the  inhabi- 
tants of  which  were  but  little  influenced  by  those 
powerful  ties  which  generally  connect  an  agricultural 
population  with  the  superior  land-owners.  With  the 
increase  of  opulence  and  population  consequent  upon 
the  increase  of  manufactures  and  trade,  education 
and  the  desire  of  political  information  became  more 
generally  diffused.  The  press  acquired  great  influ- 
ence. Political  journals  were  established  in  every 
considerable  town,  in  which  the  conduct  of  public 
men  and  the  policy  of  all  the  measures  of  Govern- 
ment were  freely  canvassed.  The  improved  facilities 
of  internal  communication  afforded  the  means  of  con- 
veying intelligence  with  astonishing  rapidity  from  one 
part  of  the  country  to  another  ;  so  that  most  persons 
began  to  take  an  interest,  not  only  in  what  was  going 
on  around  them,  but  in  public  affairs,  and  in  the  con- 
cerns of  the  remotest  part  of  the  empire.  Prejudices 
and  established  opinions  of  all  sorts  were  openly  at- 
tacked. The  structure  of  the  political  fabric,  and  the 
rights  and  privileges  of  the  different  ranks  and  orders 
of  society,  were  subjected  to  a  searching  investigation, 
and  their  claim  to  respect  began  to  be  tried  by  refer- 
ence to  their  usefulness  rather  than  their  antiquity. 
Public  opinion,  expressed  through  the  medium  of  a 
thousand  different  channels,  became  a  check  on  the 
executive  scarcely  inferior  in  efficacy  to  the  existence 
of  a  popular  assembly.  Under  such  circumstances  we 
need  not  wonder  that  the  enterprising  citizens  of 


OF   THE   CONSTITUTION.  311 


great  manufacturing  n.nd  cniqmfmriflj  tnwnSj  as  Man- 
chester, Birmingham,  Sheffield,  &c.,  felt  daily  more 
r|  issatisfip.^  at  being  denied  the  privilege  possessed  by 
so  many  inferior  boroughs,  of  sending  representatives 
to  the  House  of  Commons.  They  began,  during  the 
American  war,  publicly  to  manifest  their  impatience 
at  such  exclusion  ;  and,  deriving  confidence  from  their 
numbers,  their  wealth,  and  their  intelligence,  they 
prosecuted  their  claims  to  participate  directly  in  the 
privileges  of  the  constitution  with  a  boldness  which 
would  probably  have  been  long  ago  successful,  if  the 
progress  of  peaceful  reformation  had  not  been  arrest- 
ed by  the  violence  of  the  French  Revolution.  The 
alarms  occasioned  by  that  event,  and  the  war  that 
grew  out  of  it,  suspended  for  a  while  the  demand  for 
a  remodelling  of  the  representative  system.  But 
after  the  peace  of  1815,  these  solicitations  were  re- 
newed ;  and  the  reasonableness  of  the  claim,  united 
with  the  great  accession  of  popular  influence  and  the 
excitement  occasioned  by  the  movements  on  the  Con- 
tinent in  1830,  made  it  imprudent  any  longer  to  dis- 
regard it." 

I  have  been  quoting  the  words  of  a  well-known 
liberal  statesman,  Macculloch  ;  but  the  opinions  which 
they  express  are  now  universally  admitted.  And  Mr. 
Warren,  an  eminent  champion  of  Conservatism,  fairly 
says,  at  the  commencement  of  his  able  description* 
of  the  great  changes  of  1832,  —  "  It  may  be  stated  at 
the  outset,  and  no  intelligent,  candid,  and  consider- 
ate person  can  avoid  the  conclusion,  that  important 
changes  were  called  for  in  order  to  adapt  our  ancient 
and  free  institutions  to  the  altered  circumstances  of 
the  times." 

The  passing  of  the  Reform  Bill  in  1832  is  an  event 
too  recent  to  make  any  detailed  nana5veof  it  neces- 

*  Warren's  "  Parliamentary  Law,"  p.  5. 


312  RISE   AND    PEOGEESS 


Bar}'  or  proper  here.     By  that  statute,  the  number  of 

county  members  for  England  and  Wales,  was  increased 

gr    from  95  to  159  ;  the  number  of  members  for  the  me- 

^    tropolis  and  its  adjacent  districts  was  augmented  to 

(V*-    18 ;  56  parliamentary  boroughs  were  wholly,  and  31 

^.    partially  disfranchised ;  and  43  new  boroughs  were 

£j    created,  22  of  which  return  two  members,  and  21  one 

**i    member  each.     With  respect  to  the  county  franchise, 

the  old  forty-shilling  freeholders  were  retained  ;  except 

freeholders  for  life  in  certain  cases,  where  the  amount 

^»  of  yearly  value  required  is  10?.     But  three  pther  great 

f lasses  of  voters  were  introduced.  These  were  : — 
'irst,  copyholders  of  10?.  a  year.  Secondly,  leasehold- 
ers, if  lessees,  or  assignees,  of  a  term  of  sixty  years, 
of  10?.  yearly  value ;  if  of  a  term  of  twenty  years, 
of  50?.  yearly  value  ;  and  the  sub-lessees  or  assignees 
of  underleases,  respectively,  of  the  yearly  value  of 
10?.  and  50?.,  subject  to  conditions  as  to  length  of 
possession.  Thirdly,  occupying  tenants,  without  ref- 
erence to  the  length  of  time  for  which  the  tenancy 
was  created,  but  at  a  yearly  rent  of  50?.,  and  subject 
to  a  condition  as  to  the  length  of  time  during  which 
the  occupation  has  continued.*  No  condition  of  resi- 
dence was  imposed  on  county  voters.  In  cities  and 
boroughs  some  ancient  rights  were  reserved,  but  sub- 
ject to  important  restrictions  as  to  residence.  But 
the  great  feature  of  the  Keform  Act  was  the  new 
household  franchise  which  it  introduced,  and  gave  to 
10?.  householders,  subject,  however,  to  conditions  as 
to  residence  and  payment  of  rates,  and  liable  to  be 
temporarily  lost  by  the  receipt  of  parish  relief. 

Such  are  substantially  the  provisions  of  the  cele- 
brated Keform  Bill  of  1832  ;  the  results  of  which 
have  in  many  respects  differed  from  those  hoped  and 
feared  by  its  friends  and  its  enemies  ;  but  the  general 

*  See  Warren,  p.  10. 


OF   THE   CONSTITUTION.  813 

effect  of  which  has  undoubtedly  been  to  increase  the 
proportion  of  political  power  in  the  hands  of  the 
middle  classes  of  this  country.  And  under  the  term 
"  Middle  Classes,"  it  is  here  meant  to  include  all 
those  who  are  below  the  landed  aristocracy,  and  above 
such  artizans  and  labourers  as  depend  solely  on  man- 
ual labor  for  subsistence.  Without  entering  into  the 
existing  political  questions  which  spring  out  of  the 
present  distribution  of  political  power  in  this  country, 
we  may  usefully  close  these  discussions  with  some 
examination  into  the  details  of  how  it  is  actually  dis- 
tributed. 


14 


314  KISE   AND  PBOGBESS 


CHAPTER  XVII. 


Number  of  Population. — Distribution  of  Political  Power. — The  Crown. — Number  of 
Parliamentary  Electors. — Education. — Property. — Exercise  of  Political  Powers  In 
matters  not  Parliamentary. — Local  Self-government. — Property  Qualification. — In- 
fluence of  Public  Opinion. — Bight  of  Free  Discussion,  and  Liberty  of  the 
Press. 


THE  total  number  of  the  human  beings  living  in 
England  and  Wales  at  the  time  of  the  last  Census 
(March  31,  1851)  was  seventeen  millions  nine  hun- 
dred and  twenty-seven  thousand  six  hundred  and 
nine.*  The  whole  of  this  population  enjoys  full  and 
equal  protection  by  the  law  of  the  land  ;  but  our 
present  object  is  to  ascertain  who  enjoy  active  political 
rights,  and  in  what  degrees.  In  this  investigation 
women  and  children  are  first  to  be  excluded ;  and, 
therefore,  in  order  to  obtain  the  number  of  males  of 
full  age  in  the  total  population  of  nearly  eighteen 
millions,  we  may  follow  the  usual  statistical  rule,  and 
divide  by  four,  which  will  give,  in  round  numbers, 
about  four  millions  and  a  half  as  the  number  of 
Englishmen  and  Welshmen  of  mature  age,  who  were 
living  in  the  land,  when  the  people  were  last  num- 

*  See,  for  these  numbers  and  the  number  of  electors,  the  two  valua- 
ble volumes  lately  published  by  the  Census  Commissioners,  and  a  parlia- 
mentary return  ordered  by  the  House  of  Commons,  No.  106,  1853. 


OF    THE   CONSTITUTION.  315 

bered ;  and  if  we  assume  the  present  amount  to  be 
nearly  the  same  (the  difference  being  on  the  side  of 
increase),  our  computation  will  be  accurate  enough 
for  all  practical  political  purposes. 

In  considering  the  various  constitutional  rights 
which  are,  or  may  be,  exercised  by  the  various  mem- 
bers of  these  four  millions  and  a  half,  we  will  follow 
the  Aristotelian  classification  of  the  active  functions 
of  political  government,  wnlch  has  been  already  cited 
and  adopted  in  the  first  chapter  of  this  work.* 

First,  we  are  to  consider  who  participate  directly 
or  indirectly  in  legislation  and  deliberation  for  the 
commonweal ;  and  we  are  to  remember  that  in  a 
State  where  no  taxes  can  be  levied,  save  by  express 
law,  the  legislative  function  includes  the  taxing  func- 
tion. Next  we  must  turn  our  attention  to  adminis^ 
trative  duties  ;  what  are  the  offices  and  magistracies 
of  the  State  ?  who  are  eligible  to  them,  and  how 
appointed  ?  Thirdly,  we  must  ascertain  who  take 
part  in  the  dispensation  of  justice  in  criminal  or  in 
civil  matters. 

Before,  however,  we  discuss  these  three  classes  of 
political  functions  separately,  as  regards  the  English 
people,  we  may  properly  observe,  that  in  each  and  all 
of  them  the  Crown  is  supreme.  The  Queen  is  an  es- 
sential constituent  part  of  the  imperial  legislative 
power.  The  Queen  calls  parliament  together,  and  can 
at  her  pleasure  prorogue  or  dissolve  it.  In  all  matters 
of  civil  government,  in  all  that  relates  to  the  inner  life 
of  the  State,  the  Queen  is  the  chief  magistrate  of  the 
nation,  and  all  other  magistrates  act  by  her  commis- 
sion. In  all  that  relates  to  the  outer  life  of  the  State, 
in  its  dealings  with  other  States,  the  Queen  (to  use 
the  felicitous  expression  of  Mr.  Warren),f  is  "  the  vis- 
ible representative  of  the  majesty  of  the  State."  She 

*  Soe  p.  7,  supra.  f  Warren's  "  Blackstone,"  p.  204. 


316  EISE   AND    PROGRESS 

has  the  sole  prerogative  of  making  war  or  peace ;  it  is 
in  her  name  that  all  treaties  are  concluded,  and  all 
international  duties  are  performed. 

The  command  of  all  the  military  and  naval  forces 
of  the  State  is  hers  also.  In  judicial  matters  the 
Queen  is  regarded  by  the  Constitution  as  the  fountain 
of  justice,  and  she  is  "  over  all  persons,  and  in  all 
causes,  as  well  ecclesiastical  as  civil,  in  these  her  do- 
minions, supreme." 

But  while  thus  we  find  royalty  to  he  "  the  roof 
and  crown  "  of  our  Constitution  in  whatever  aspect  it 
is  regarded,  we  know  also  that  the  formal  limitations.* 
which  the  ancient  ordinances  of  the  Constitution  have 
imposed  on  the  free  will  and  free  power  of  individual 
sovereignty,  are  many  and  strong ;  and  (as  we  have 
already  had  occasion  to  remark  * )  the  practical  Jjm- 
itations  are  stronger  still.  The  necessity  of  obtaining 
annual  supplies  of  money  for  the  enormous  expenses 
of  the  State,  and  the  necessity  of  the  annual  renewal 
of  the  Mutiny  Bill,  in  order  to  keep  our  military 
forces  embodied,  make  annual  Sessions  of  Parliament 
inevitable.  And,  though  our  Sovereigns  are  person- 
ally irresponsible,  they  must  rule  through  responsible 
advisers  :  and  no  minister  can  carry  on  the  affairs  of 
the  State  without  the  sanction  of  the  constitutional 
representatives  of  the  public,  on  whom  he  is  really 
dependent  for  his  tenure  of  office.  During  eight 
reigns  there  has  not  occurred  (nor  is  it  likely  that 
there  will  ever  again  occur)  any  gross  royal  violation 
of  the  great  cardinal  maxims  of  the  Constitution. 

Let  us  resume  our  consideration  of  how  political 
power  is  distributed  among  the  people  of  England  ; 
and,  first,  as  to  parliamentary  power. 

Enough  has  been  already  said  in  previous  chapters 
respecting  the  position,  rights,  and  privilege  of  those 

*  Sec  supra,  p.  301. 


OF    THE   CONSTITUTION.  317 

who  actually  compose  the  Two  Houses ;  of  the  Peers, 
and  of  the  elected  Kepresentatives  of  the  Commons. 
I  pass  at  once  to  the  consideration  of  the  number  of 
the  people  hy  whom  the  members  of  the  House  of 
Commons  are  elected ;  and  who  thus,  indirectly,  exer- 
cise parliamentary  power. 

The  number  of  Englishmen  and  Welshmen  who 
voted  at  the  last  General  Election,  in  1852,  was  three 
hundred  and  forty-one  thousand  eight  hundred  and 
thirty. 

The  disproportion-  between  this  number,  and  the 
four  millions  and  a  half  which  we  have  seen  to  be  the 
aggregate  of  the  adult  male  population,  appears  at 
first  sight  to  be  enormous  ;  but  there  are  some  other 
calculations  to  be  attended  to,  which  will  diminish  the 
surprise  which  it  excites.     In  the  first  place,  though 
only  the  small  number  that  has  been  mentioned,  ac- 
tually polled,  we  must  ascertain  how  many  were  enti-  ^ 
tied  to  vote  at  the  last  election,*  and  we  shall  find  ^ 
that  the  number  of  registered  electors  then  was  nine  ^ 
hundred   and   eighteen    thousand   six  hundred    and  i 
eighty-three.     As  many  of  these  had  votes  in  more  ' 
than  one  capacity,  or  for  more  than  one  place,  and 
consequently  were  counted  more  than  once  in  the  ag- 
gregate of  the  registers,  we  must  make  some  deduc- 
tion from  this  number.     Altogether  we  may  perhaps 
safely  estimate  that  rather  more  than  one  man  in 
every  five  in  England  and  Wales  has  a  right  to  vote 

*  See  Parliamentary  Return,  House  of  Commons,  No.  106,  1853. 
It  appears  by  this  return  that  the  number  of  county  voters  for  England 
and  Wales  who  polled  at  the  last  election,  was  115,153;  the  number  on 
the  register  was  507,754.  These  return  159  members.  The  number  of 
borough  electors  who  polled  was  225,677  ;  the  number  on  the  register 
was  410,929.  These  return  339  members.  In  a  great  number  of  conn- 
ties  and  many  boroughs  there  was  no  contest  in  1852  ;  so  that  the  num- 
ber of  actual  voters  does  not  even  give  a  test  of  those  who  both  possessed 
and  valued  the  franchise. 


318  RISE   AND   PKOGKESS 

in  the  election  of  the  representatives  of  the  Commons 
Estate  in  the  Lower  House  of  Parliament.* 

But  the  mere  element  of  numbers  (though  of 
primary  importance)  can  never  be  the  sole  one  to  be 
taken  into  account  when  the  distribution  of  the  elec- 
toral franchise  is  considered.  Intelligence  and  prop- 
erty must  have  their  weight.  The  extension  of 
education  and  the  extension  of  the  suffrage  are  topics 
inseparably  united  for  consideration  in  a  statesman's 
mind ;  and  with  respect  to  the  claims  of  property 
there  may  be  great  difference  of  opinion  as  to  the 
amount  of  authority  that  should  be  given  to  it ;  but 
few  deny  that  it  should  have  some  degree  of  influence 
in  the  electoral  system. 

With  respect  to  education  there  are  no  complete 
statistics  to  show  the  extent  to  which  it  is  diffused  or 
deficient  among  the  various  classes  that  make  up  the 
great  bulk  of  the  population.  But  there  can  be  no 
doubt  as  to  there  being  a  fearful  amount  of  ignorance 
and  consequent  debasement  among  very  large  num- 
bers of  our  population.  Much  information  on  this 
subject  is  collected  in  Mr.  Pashley's  valuable  work  on 
Pauperism.  That  careful  and  accurate  inquirer  and 
sound  and  fair  thinker  describes  the  three  millions  of 
our  population  who  (according  to  his  calculations) 
require  and  actually  receive  parish  relief  in  the  course 
of  every  year,  as  "ignorant,  degraded,  and  misera- 
ble ;  "  and  he  truly  states  that  they  "  indicate  the 
existence  of  «  still  larger  class  to  which  they  belong, 
which  is  but  little,  if  at  all,  less  ignorant,  degraded, 
and  miserable  than  themselves/'  Some  of  the  in- 
stances which  he  cites  of  the  depth  of  the  ignorance 


*  The  proportion  was  calculated  to  be  one  in  five  in  1839,  according 
to  the  returns  then  furnished,  See  Maccullocli's  "Stat.  Account  of  Brit 
Empiie,"  vol.  ii.  p.  105. 


OF   THE   CONSTITUTION.  319 

that  prevails  among  them  show  it  to  be,  as  he  terms 
it,  "  appalling."  * 

The  melancholy  amount  of  pauperism  that  still 
exists  in  the  country,  is  also  a  subject  to  be  deeply 
considered  by  all,  who  in  any  degree  recognize  proper- 
ty as  part  of  the  basis  of  a  sound  electoral  system. 
The  number  has  been  already  cited  from  Mr.  Pashley 
of  the  recipients  of  parish  relief  at  some  time  or 
another  during  the  year.  The  figures  are  fearful- 
ly emphatic — 3,000,000  !  The  number  constantly 
chargeable  and  entirely  supported  out  of  the  poor 
rates,  is  reckoned  to  be  not  less  than  a  million. 


*  No  one  can  read  without  deep  interest  and  sympathy  the  following 
passages,  which  conclude  Mr.  Pashley's  first  chapter : — 

"  Now  that  3,000,000  of  our  population,  belonging  to  an  ignorant, 
degraded,  and  miserable  pauper  class,  actually  receive  parish  relief  in  the 
course  of  every  year,  and  indicate  the  existence  of  a  still  larger  class  to 
which  they  belong,  and  which  is  but  little,  if  at  all,  less  ignorant,  degrad- 
ed, and  miserable  than  themselves,  it  becomes  high  time  not  merely  for 
Christian  philanthropists,  but  for  practical  statesmen,  to  turn  their  atten- 
tion to  effecting  some  elevation  and  improvement  in  the  condition  and 
instruction  of  the  great  masses  of  the  people.  The  ignorance  in  which 
those  masses  are  left  may  be  seen  in  some  of  Mr.  Clay's  valuable  reports 
on  th«  Preston  House  of  Correction.  The  appalling  ignorance  of  crimi- 
nals is  a  proof,  if  proof  be  needed,  of  the  total  want  of  education  of  the 
whole  class  from  which  the  bulk  of  criminals  is  supplied.  In  1850  Mr. 
Clay  says,  '  With  reference  to  1636  male  prisoners,  it  is  a  fact  that  674 
were  unable  to  read  in  the  slightest  degree ;  646  were  ignorant  'of  the 
Saviour's  name,  and  unable  to  repent  a  word  of  intelligible  prayer ;  and 
1111  were  unable  to  nanie  the  months  of  the  year  in  their  proper  order ; 
while  713  were  well  acquainted' with  the  exciting  adventures  and  villa- 
nies  of  Turpin  and  Jack  Sheppard,  and  admired  them  as  friends  and 
favourers  of  the  poor,  inasmuch  as  if  they  did  rob,  they  robbed  the  riclifor 
the  poor.' 

"  Sadly  does  the  State  neglect  its  duty  when  such  is  the  intellectual, 
moral,  and  religious  condition  of  a  numerous  class  of  its  children.  The 
Pagans  of  the  ancient  world  admitted  the  existence  of  this  duty :  and  it 
has  been  justly  observed  that  '  the  philosophers  of  antiquity  well  knew 
•what  an  important  part  of  man's  work  it  was  to  educate  the  young  to 
become  worthy  active  members  of  their  civil  commonwealths.  Hence 
education  was  ever  a  main  element  in  their  scheme  of  polity,  whethei 
practical  or  ideal.'  But  this  duty  we,  who  call  ourselves  Christians,  anil 
profess  to  follow  the  divine  precept,  '  Love  one  another,'  entirely  neglect 
to  fulfil." 


320  BISE   AND   PBOGBESS 

I  abstain  here  from  entering  into  a  discussion  as 
to  the  practical  inferences  to  be  drawn  from  these 
facts.  But  they  are  facts  which  must  modify  the 
strong  conclusions,  to  which  the  mind  might  be  hur- 
ried by  a  bare  comparison  of  the  number  of  voters 
with  the  number  of  the  population.  Nor,  on  the 
other  hand,  will  I  do  more  than  advert  to  the  circum- 
stance that  very  many  of  the  most  intelligent  mem- 
bers of  the  middle  class  are  at  present  without  votes. 
There  is  also  the  important  fact  of  the  change  that 
has  taken  place  in  the  lower  classes  of  our  town  pop- 
ulation as  to  their  desire  for  and  their  capacity  for 
political  power.  It  is  to  be  remembered  that  the 
aggregate  town  population  is  now  one-half  of  the 
entire  population  of  England ;  formerly  the  proportion 
was  much  smaller. 

But  the  artizaiis^^nij^nBclianigs  of  the  present 
day  are  not  c^m^finerentin  number,  but  are  wholly 
different  in  spirit  from  their  apathetic  predecessors. 
The  packing  of  the  population  in  large  manufacturing 
towns,  the  progress  of  education  (lamentably  imperfect 
as  it  has  been,  especially  for  the  best  objects  of  educa- 
tion), the  springing  up  of  a  cheap  press  and  a  cheap  liter- 
ature, the  ferment  caused  in  men's  minds  by  the  Ameri- 
can War  of  Independence  and  by  the  French  Kevolu- 
tions,  the  growing  habit  of  combining  and  acting  in 
organized  bodies, — these,  and  other  causes,  have  worked 
the  great  alteration.*  There  may  be  much  vice,  much 
violence,  much  ignorance  among  these  masses ;  but  no 
one  who  has  watched  them  will  deny  that  they  con- 
tain hundreds  and  thousands  of  honest  hard-working 
men,  who  read,  study,  and  discuss  the  political  events 
of  the  day  with  growing  interest  and  intelligence  ; 

*  There  is  in  the  second  volume  of  Mr.  Bancroft's  "  American  War," 
a  graphic  account  of  England  as  it  was  in  1763,  which  deserves  an  atten- 
tive perusal  for  the  important  contrasts  which  it  shows  between  that 
England  and  the  England  of  the  present  day. 


OF   THE    CONSTITUTION.  321 

who  support  materially,  though  indirectly,  the  weight 
of  taxation,  and  whose  manual  toil  heaps  up  our  na 
tional  wealth. 

There  yet  remains  a  point  of  view  fiom  which 
the  present  state  of  the  franchise  is  to  be  regarded,  in 
order  to  judge  it  correctly  ;  that  is,  not  merely  to  see 
in  how  many  hands  the  jfanchjge  is,  but  to  examine 
also  wftfrjffl  wfroflfl  yeych  it  is.  And  we  shall  find  that 
though  the  borough  franchise  is  not  to  be  obtained 
unless  a  man  takes  a  10?.  house  and  resides  in  it,  the 
county  franchise  of  40s.  freehold  is  easily  attainable 
by  any  man  who  possesses  or  can  save  a  very  moder- 
ate sum.  Since  the  Reform  Bill,  societies  have  been 
formed  for  the  purchase  of  estates  and  multiplication 
of  small  freeholds  in  the  counties,  for  the  express 
purpose  of  giving  votes.  An  attempt  was  made  to 
stop  this  system,  and  to  treat  such  acquisitions  of 
freeholds  as  void,  under  certain  statutes  of  the  reigns 
of  William  and  Anne.  But  the  Court  of  Common 
Pleas,  before  which  the  decisions  of  the  revising  bar- 
rister were  brought  by  appeal,  confirmed  the  votes  ; 
and  established  the  important  principle  that  the  sale 
of  land,  when  the  property  is  really  intended  to  pass 
to  th  )  purchaser,  is  legal,  notwithstanding  it  is  made 
with  a  view  of  multiplying  votes,  and  that  the  votes 
so  created  are  good.* 

Hitherto  we  have  been  considering  the  participa- 
tion in  the  deliberative,  and  legislative,  and  taxing 
functions  of  government,  solely  as  regards  participa- 
tion, either  as  peer,  or  as  elected  commoner,  or  as 
elector  of  representatives  of  the  Commons.  We  have 
been  speaking  of  parliamentary  power  only.  And 
undoubtedly  this  is  the  noblest  and  most 


of  all  politicaLpower  ;  for,  not  only  is  our  Parliament 
the  great  organ  of  the  English  Constitution,  but  it  is 

*  Ses  the  cases  collected  in  Mr.  Warren's  book,  p.  367. 

14* 


322  RISE   AND  PBOGEESS 

also  the  great  organ  of  the  Constitution  of  the  British 
Empire  ;  of  England  and  her  sister  kingdoms  of 
Scotland  and  Ireland,  and  also  of  her  magnificent 
colonial  and  other  transmarine  dominions  in  North 
America,  in  India,  and  Australia,  in  almost  every 
region  of  the  habitable  globe.  To  adopt  not  only  the 
sagacious  thoughts,  but  also  the  beautiful  language 
of  Burke,  "  The  Parliament  of  Great  Britain  sits  at 
the  head  of  her  extensive  empire  in  two  capacities  ; 
one,  as  the  local  legislation  of  this  island,  providing 
for  all  things  at  home,  immediately,  and  by  no  other 
instrument  than  the  executive  power.  The  other, 
and,  I  think,  her  nobler  capacity,  is  what  I  call  her 
imperial  character,  in  which,  as  from  the  throne  of 
heaven,  she  superintends  all  the  several  inferior  legis- 
latures, and  guides  and  controls  them  all  without 
annihilating  any."  * 

But  though  the  British  parliament  is  thus  clearly 
the  noblest  scene  of  deliberative  and  legislative  politi- 
cal functions,  that  the  British  Empire  or  the  whole 
world  can  exhibit : — though,  when  we  bear  in  mind 
the  paramount  influence  which  the  House  of  Com- 
mons now  influences  on  the  Government  of  England,f 
as  well  as  the  unparalleled  extent  to  which  England's 
policy  influences  the  fortunes  of  the  world,  we  may 
safely  assert  that  the  position  of  a  member  of  the 
English  House  of  Commons,  if  honourably  acquired, 
and  well  and  wisely  used,  is  the  noblest  that  ever  was 
opened  to  civilised  man ;  insomuch,  that  even  the 
haughty  station  of  a  senator  of  Old  Home  in  the 


*  Speech  on  American  Taxation,  19th  of  April,  1774.  We  have  now 
(1855)  upwards  of  fifty  colonies  and  minor  transmarine  dependencies, 
besides  our  magnificent  Indian  dominions  with  their  population  of  a  hun- 
dred and  fifty  millions,  for  whom  the  British  Parliament  was  lately  called 
on  to  legislate,  and  soon  will  have  to  legislate  again. 

f  See  M.  Guizot's  remarks  on  the  preponderant  influence  of  the  HOUM 
of  Commons,  at  p.  268,  supra. 


OF   THE   CONSTITUTION.  323 

palmiest  days  of  her  Commonwealth  ppears  poor  in 
comparison  with  it : — Chough  we  feel,  therefore,  that 
the  privilege  of  a  voice  in  the  selection  of  the  mem- 
bers of  that  House  is  the  franchise  most  earnestly  to 
be  sought,  and  most  conscientiously  and  firmly  to  be 
exercised : — though  we  gladly  acknowledge  all  these 
attributes  of  Parliamentary  supremacy,  we  must  also 
rejoice  in  the  fact,  that  an  Englishman's  direct  exer- 
cise of  deliberative  and  legislative  powers  is  not  limit- 
ed to  Parliament  (of  which  but  very  few  can  ever 
become  members)  ;  nor  is  his  acquaintance  with  elec- 
toral duties  and  the  working  of  political  machinery 
limited  to  the  occasions  when  he  votes  for  representa- 
tives in  the  House  of  Commons  ; — occasions  that 
cannot  be  of  very  frequent  recurrence.  There  are 
almost  innumerable  other  spheres  of  political  action, 
each  comparatively  humble  and  limited  in  itself,  but 
collectively  of  infinite  importance,  on  account  of  the 
universality  of  their  operation,  and  the  daily  and 
hourly  duties  and  interests  of  every  man's  life  which 
they  affect.  Every  parish  has  its  vestry  ;  that  is  to 
say,  "  an  assembly,  where  the  inhabitants  of  a  parish 
meet  together  for  the  despatch  of  the  affairs  and  busi- 
ness of  the  parish."  *  Every  borough  has  its  town 
council,  every  poor-law  union  has  its  board  of  guardi- 
ans. Each  of  these  (and  many  more  might  be  men- 
tf.oned)  is  a  deliberative,  a  legislative,  and  a  taxing 
body.  In  each  of  these  the  elections  of  various 
functionaries  are  conducted ;  and  many  of  them  are 
themselves  representative  bodies,  varied  and  renewed 
by  generally  annual  elections.  We  shall  have  occa- 
sion to  speak  of  the  principle  of  local  self-government 
(which  these  little  assemblies  aid  in  developing)  more 
fully,  when  we  deal  with  the  administrative  part  of 
governmental  functions,  in  which  that  principle  is 

•  Bum. 


324  RISE   AND   PROGRESS 

concerned  the  most.  But  our  vestries,  our  borough 
councils,  and  the  like,  are  also  invaluable  in  qualifying 
our  nation  for  taking  part  in,  and  for  living  under, 
Imperial  Parliamentary  Government.  They  are  them- 
l/  selves  local  parliaments.  They  bring  the  principles 
*  and  the  practice  of  legislation  and  of  representation 
e  home  to  every  man's  door,  and  they  familiarize  every 
man  with  them  in  his  daily  life.  They  diffuse,  so  to 
speak,  a  parliamentary  atmosphere  throughout  the 
land.  They  habituate  us  with  public  speaking  ;  and 
they  accustom  us  to  hear  and  to  think,  as  well  as  to 
speak.  They  train  us  to  due  observance  of  the  neces- 
sary forms  and  restrictions  of  public  discussion.  They 
mature  in  us  that  aptitude  for  orderly  association,  and 
that  capacity  for  organized  energy,  which  seem  to  be 
instinctive  to  men  in  England  and  in  the  United 
States,  but  are  so  very  scarce  and  imperfect  else- 
where.* They  foster  the  principle  of  acquiescence 
by  the  Minority  in  carrying  out  the  resolutions  of  the 
Majority,  so  long  as  those  resolutions  are  unreversed, 
together  with  the  freest  action  by  that  Minority  in 
endeavouring  to  procure  a  legitimate  reversal  of  those 
resolutions.f  They  aid  in  creating,  and  they  mate- 

*  "Foreigners  frequently  express  their  surprise  at  the  ease  with 
which,  in  our  country  meetings,  societies,  bodies,  communities,  and  even 
territ(  ries,  self-constitute  and  organize  themselves,  and  transact  business 
without  violence,  and  without  any  force  in  the  hands  of  the  majority  to 
coerce  the  minority,  or  in  the  hands  of  the  minority,  to  protect  itself 
against  the  majority.  One  of  the  chief  reasons  of  this  phenomenon  is  the 
universal  familiarity  of  our  people  with  parliamentary  practice,  which 
may  be  observed  on  board  of  any  steamboat  where  a  number  of  persons, 
entire  strangers  to  one  another,  proceed  to  pass  some  resolution."  Pro- 
f  jssor  Lieber  observes  this  of  America.  It  is  equally  true  of  England. 

t  "  The  obedience  of  a  loyal  free  citizen  is  an  act  of  self-directing 
compliance  with  a  rule  of  action ;  and  it  becomes  a  triumph  of  reason  and 
freedom  when  self-directing  obedience  is  thus  paid  to  laws  which  the 
obeyer  considers  erroneous,  yet  knows  to  be  the  laws  of  the  land,  rules 
of  action  legitimately  prescribed  by  a  body  of  which  he  forms  a  constitu- 
ent part.  This  noble  attribute  of  man  is  never  politically  developed  ex- 
cept by  institutions.  To  obey  institutions  of  self-government  has  nothing 
galling  in  it  on  the  ground  of  submission.  Wo  dc  not  obey  a  person 


OF   THE   CONSTITUTION.  325 

riaJJv  strengthen  among  us  that  rare  and  difficult 
sentiment  which  Mr.  Grote,  in  his  remarks  on  certain 
of  the  Athenian  institutions,  has  finely  termed  "  a 
Constitutional  Morality — a  paramount  reverence  for 
the  forms  of  the  Constitution,  enforcing  obedience  to 
the  authorities  acting  under  and  within  these  forms, 
yet  combined  with  the  habit  of  open  speech,  of  action 
subject  only  to  definite  legal  control,  and  unrestrained 
censure  of  those  very  authorities  as  to  all  their  public 
acts,  combined  too  with  a  perfect  confidence  in  the 
bosom  of  every  citizen,  amidst  the  bitterness  of  par- 
ty contest,  that  the  forms  of  the  Constitution  will  not 
be  less  sacred  in  the  eyes  of  his  opponents  than  in  his 
own."  ^ 

Most  truly  also  does  the  same  great  historian  re- 
mark on  the  same  subject  that  "  The  diffusion  of  such 
constitutional  morality,  not  merely  among  the  major- 
ity of  any  community,  but  throughout  the  whole,  is 
the  indispensable  condition  of  a  government  at  once 
free  and  peaceable  ;  since  even  any  powerful  and  obsti- 
nate minority  may  render  the  working  of  free  institu- 
tions impracticable,  without  being  strong  enough  to 
conquer  ascendancy  for  themselves.  Nothing  less  than 
unanimity,  or  so  overwhelming  a  majority  as  to  be  tan- 
tamount to  unanimity,  on  the  cardinal  point  of  res- 
pecting constitutional  forms,  even  by  those  who  do  not 
wholly  approve  of  them,  can  render  the  excitement 
of  political  passion  bloodless,  and  yet  expose  all  the 
authorities  in  the  State  to  the  full  licence  of  pacific 
criticism."  * 

Unquestionably  these  local  vestries  and  town  coun- 


,  as  individuals,  we  know  to  be  no  more  than  ourselves,  but  we 
obey  the  institutions  of  which  we  know  ourselves  to  be  as  integral  a  part 
as  the  superiors  clothed  with  authority.  The  religious  duty  of  obeying 
for  conscience'  sake  is  not  excluded  from  this  obedience.  On  tho  con- 
trary it  forms  an  important  element." — Lieber,  p.  285. 
*  "  History  of  G  reece,"  voL  v. 


326  RISE   AND   PROGRESS 

cils,  and  similar  meetings  of  which  we  have  been 
speaking,  do  in  themselves,  and  in  the  elections  con- 
nected with  them,  too  often  present  scenes  of  coarse- 
ness, turbulence,  and  worse  faults,  at  which  the 
thoughtless  man  may  laugh,  and  the  thoughtful  man 
must  grieve  ;  but,  take  them  for  all  in  all,  they  are 
essential  elements  of  our  free  system  ;  and  without 
them  England  would  not  long  continue  to  be  a  con- 
stitutional or  a  great  country. 

I  pass  on  now  to  the  second  class  of  constitutional 
functions,  the  Administrative.  They  are  rightly 
placed  by  the  old  Greek  teacher  after  the  Deliberative, 
as  subordinate  to  them.  He,  who  bears  office  in  a 
constitutional  State,  must  execute  office  only  accord- 
ing to  law  ;  and  the  makers  of  law  are,  therefore,  his 
superiors. 

Our  Parliament,  indeed,  not  only  makes  laws,  but 
it  practically  controls  every  measure  of  administration, 
either  foreign  or  domestic.  But  though  it  can  direct 
or  prevent,  and  though  it,  and  it  alone,  furnishes  the 
means  by  which  every  measure  can  be  executed,  it,  of 
itself,  performs  no  executive  duties.  Our  purpose  is 
now  to  examine  the  chief  executive  and  administrative 
offices  of  the  State,  whether  of  general  or  of  merely 
local  authority.  Offices  of  a  judicial  nature  will  be 
reserved  for  the  third  head  of  the  classification  of  Con- 
stitutional Functions,  which  we  have  adopted  ;  and  it 
seems  needless  to  repeat  here,  what  has  been  already 
more  than  once  dwelt  on  in  this  work  as  to  the 
Crown's  right  of  appointment  to  all  military  and  naval 
commands,  and  as  to  the  Crown's  dependence  on  Par- 
liament for  the  maintenance  of  the  armed  forces  of  the 
nation.'-1 

The  highest  offices  of  State  are  unquestionably 
those  which  are  usually  held  by  the  constitutional  and 
responsible  advisers  of  the  Crown,  who,  in  the  name 

*  See  p.  315,  supra. 


OF   THE   CONSTITUTION.  327 

of  their  sovereign,  carry  on  the  administration  of  this 
great  empire,  both  in  matters  of  general  interest  and 
in  all  of  external  policy.  These  are  generally  about 
fifteen  in  number.  They  are  called  /car'  e^o^rjv  the 
Ministers  of  State.  They  are  all  privy  councillors, 
and  they  alone  form  "  the  Cabinet,"  a  term  which  has 
been  adverted  to  in  a  pT6viou¥cnapter.  The  chief  of 
them,  by  long  usage,  holds  the  office  of  First  Lord  of 
the  Treasury,  whence  he  is  commonly  called  the  Pre- 
mier, and  sometimes  the  Prime  Minister.  Among  the 
other  more  important  Cabinet  offices  are  those  of  the 
Chancellor  of  the  Exchequer,  on  whom  devolve  the 
important  and  anxious  duties  connected  with  the 
finances  of  the  Empire,  and  the  obtaining  from  Par- 
liament the  necessary  taxes  and  grants  of  supply :  and 
those  of  the  four  Secretaries  of  State,  three  of  whom 
hold  the  seals  for  Home,  for  Foreign,  and  for  Colonial 
affairs  respectively — the  fourth  (whose  office,  as  dis- 
tinct from  the  Colonial,  is  of  recent  creation)  is  the 
Secretary  for  War.  Another  member  of  the  Cabinet 
is  the  Lord  Chancellor.  It  is  unnecessary  to  specify 
the  others  here,  or  to  give  a  detailed  list  of  the  numer- 
ous subordinate  officials.  Theoretically  the  Crown 
may  choose  any  of  its  liege  subjects  as  its  ministers,0 
bat  practically  the  choice  is  very  limited.  Inasmuch  as 
ministers  can  only  carry  on  the  government  by  means  of 
parliamentary  majorities,  their  presence  in  Parliament 
is  indispensable  ;  and  it  is  necessary  that  no  small 
proportion  of  them,  both  as  to  number  and  as  to  talent, 
shall  be  members  of  the  House  of  Commons.  This, 
and  the  heavy  expense  attendant  on  official  life  in  this 
country,  and  the  natural  unwillingness  of  many  of  the 
ablest  men,  who  are  engaged  in  commerce  or  other 
active  occupations,  to  sacrifice  their  business  for  a  pre- 


*  There  are  a  few  remaining  disabilities  on  religious  grounds,  which 
do  not  require  particularizing  here. 


328  RISE    AND    PROGRESS 

carious  tenure  of  office,  contribute  materially  to  the 
operation  of  party  cliques,  of  family  influences,  and  of 
personal  jealousies,  in  depriving  the  country  of  the 
best  services  of  the  best  men.  This  is  unquestiona- 
bly one  of  the  gravest  difficulties  connected  with  the 
present  working  of  our  Constitution,  especially  amid 
emergencies  such  as  war  inevitably  creates.  Various 
remedies  have  been  proposed,  which  it  would  be  im- 
proper to  discuss  here.  But  this  much  may  be  averred, 
that  even  if  the  causes  of  embarrassment  which  have 
been  referred  to,  were  far  greater,  it  would  be  cowardice 
and  folly  were  we  on  their  account  to  renounce  our 
Constitution,  or  to  despair  of  our  country.  There  is 
nothing  in  them  which  magnanimity  on  the  part  of 
individuals,  and  liberality  on  the  part  of  the  public, 
may  not  amply  overcome. 

In  the  Board  of  Trade,  in  the  General  Bp_aj$  of 
Health,  and  other  similar  bodies,  and  above  all  in  the 
Central  Poor  Law  Board,  we  find  officers  of  State  who 
exercise  most  momentous  functions  affecting  the  social 
economy  of  the  realm.  On  the  general  policy  of  setting 
up  such  gigantic  engines  of  centralization,  some  re- 
marks will  be  offered  presently.  We  pass  meanwhile 
to  the  more  important  territorial  officers  whom  the 
Crown  appoints  in  each  county.  These  are  •y^JojjJ- 
^ieutejaant,  and  the  Rhqriffr  and  .justices  of  the  peace, 
who  perform  administrative  duties~ot  considerable  im- 
portance,  besides  those  which  devolve  on  them  in  their 
judicial  capacity.  The  lord-lieutenant,  who  is  now 
practically  the  most  important  Crown-officer  in  each 
shire,  is  usually  a  nobleman  who  has  property  there 
situate.  He  represents  the  sovereign  in  her  rights  and 
powers  as  chief  of  the  old  common-law  military  force 
of  each  county.  In  case  of  invasion,  or  menaced  inva- 
sion, or  of  rebellion,  it  is  through  the  lord-lieutenant 
that  the  indisputable  prerogative  of  the  Crown  to  call 
on  all  its  subjects  to  bear  arms  and  serve  against  the 


OF    THE   CONSTITUTION.  329 

enemy  would  be  exercised.  The  lord-lieutenant  is 
accordingly  the  regular  chief  of  the  county  militia, 
which  may  be  regarded  substantially  as  a  common-law 
national  force,  though  its  duties,  liabilities,  and  pow- 
ers, are  in  many  important  respects  extended  and  reg- 
ulated by  statutes  made  in  that  behalf.  Besides  this 
military  authority,  the  lord-lieutenant  in  practice  ex- 
ercises the  high  civil  power  of  selecting  the  justices  of 
the  peace  ;  for  it  is  on  his  recommendation  that  the 
Lord  Chancellor  (by  custom,  though  not  invariably, 
or  by  any  means  necessarily)  adds  the  name  of  each 
new  justice  to  the  commission  of  the  peace  for  the 
county. 

The  lord-lieutenancy  is  an  office  of  comparatively 
modern  date,  not  to  be  distinctly  traced  before  the 
times  of  Philip  and  Mary,  and  not  definitely  and  con- 
tinuously established  until  the  reign  of  Charles  II. 
The  lord-lieutenancy  has  practically  much  diminished 
the  importance  of  the  ancient  office  of  the  shrievalty, 
though  still  in  theory  "  the  executive  government  of 
every  county  is  vested  in  the  sheriff,"  *  who  is  entrust- 
ed with  all  the  Queen's  business  in  his  bailiwick,  and 
to  whom  the  royal  warrant,  by  which  he  is  appointed, 
solemnly  entrusts  "  the  custody  of  the  county."  f  The 
sheriff  is  the  chief  conservator  of  the  Queen's  peace 
within  his  shire  :  he  may  arrest  and  commit  to  prison 
all  who  break  or  attempt  to  break  the  peace  ;  he  has 
power,  and  it  is  his  duty,  to  pursue,  apprehend,  and  com- 
mit to  gaol,  all  traitors,  murderers,  and  felons  ;  he  exe- 
cutes the  sentence  and  the  process  of  the  Queen's  courts, 
both  criminal  and  civil ;  and,  besides  the  officers  regu- 
larly employed  by  him  for  those  duties,  he  may,  if 
requisite,  command  the  aid  of  any  person  in  his  county , 
and  may  even  summon  the  whole  force  of  the  county! 


*  Bowyer's  Commentaries,  p.  374. 

*  Statute  3  and  4  Will.  IV.  c.  99,  sec.  3,  and  Schedule 


330  RISE   AND   PROGRESS 

called  by  our  lawyers  the  posse  comitatus,  a  summons 
which  every  able-bodied  commoner  must  obey  under 
penalty  of  fine  and  imprisonment.  He  has  the  like 
authority  in  case  of  invasion ;  though,  as  we  have 
seen,  the  lord-lieutenant  is  practically  the  chief  of  the 
local  military  force  of  each  shire.  The  sheriff  is  still 
the  chief  executive  officer  in  parliamentary  elections. 
When  a  new  parliament  is  to  be  summoned,  the  clerk 
of  the  Crown  (by  the  Lord  Chancellor's  warrant) 
issues  a  writ  under  the  great  seal  to  the  sheriff  of  each 
county,  requiring  him  to  cause  the  election  of  the 
county  representatives  and  also  of  those  of  each  city 
and  borough  within  his  shire  that  returns  members. 
For  this  latter  purpose,  the  sheriff  issues  his  prece'pts 
to  the  head  of  each  of  these  municipal  constituencies. 
They  return  the  precepts  to  him  with  the  names  of 
the  persons  elected,  and  he  returns  to  the  clerk  of  the 
Crown  the  writ  which  he  had  received,  with  the  names 
of  all  chosen  either  as  county  or  borough  members. 
We  have  seen  that  the  authority  of  the  sheriffs  in  par- 
liamentary elections  was  formerly  made  the  engine  of 
much  interference  by  the  Crown,  and  of  much  fraud 
and  oppression.*  But  abuses  of  this  nature  have  long 
been  obsolete  ;  and  there  is  little  danger  of  their  ever 
reviving,  while  election  proceedings  are  watched  keenly 
by  the  press  and  the  public. 

The  sheriff  was  anciently  elected  by  the  inhabitants 
of  the  county,  but  has  for  some  centuries  past  been 
appointed  yearly  by  the  sovereign  out  of  a  list  of  three 
recommended  by  the  judges  and  other  high  officers  of 
the  Crown.  No  express  law  prescribes  any  qualifica- 
tion of  residence  or  property  ;  but  by  usage  he  is  a 
person  of  condition  and  estate,  residing  in  the  shire 
for  which  he  is  to  act. 

The  next  in  order  of  the  administrative  district 

*  See  p.  221,  tupra. 


OF   THE   CONSTITUTION.  331 

officers  appointed  by  the  Crown  are  the  justices  of  the 
peace.  (We  now  speak  of  them  as  regards  their  ad- 
mimstrative  functions  only  ;  their  judicial  powers  will 
be  considered  elsewhere.)  These  important  officers 
(as  observed  before)  were  formerly  called  conservators 
of  the  peace,  and  were  chosen  by  the  freeholders  in  the 
county  court  ;  but  since  the  beginning  of  the  reign  of 
Edward  III.,  the  Crown  has  appointed  by  commission 
"  keepers  of^  the  peace,"  who,  when  judicial  powers 
were  conferred  on  them  in  a  later  period  of  the  same 
reign,  took  the  more  dignified  title  of  justices.  As  has 
been  mentioned  already,  the  justices  for  each  county 
are  now  usually  appointed  from  among  the  resident 
gentry  in  it  on  the  recommendation  of  the  lord-lieu- 
tenant. A  property  qualification  is  prescribed  by 
statute  (with  certain  exemptions)  of  £100  a  year  land- 
ed property  in  England  or  Wales.  The  office  is  deter 
minable  at  the  pleasure  of  the  Crown.  Justices  have 
special  power  to  keep  the  peace,  and  they  have  an  im- 
portant preventive  authority,  in  being  empowered  to 
require  sureties  for  good  behaviour  from  evil-doers  ;  an 
aujy^jit^  that  has  been  suffered  too  much  to  fall  into 
(nsuse^All  inns  and  places  of  public  assembly  require 
the  annual  licence  of  the  justices  of  the  peace  for  the 
district.  They  have  controlling  power  in  many  other 
local  matters  ;  and  their  joint  action  with  the  populai 
bodies  of  each  parish  or  other  local  district  is  necessary 
in  many  appointments  and  in  the  enforcement  of  local 
taxation.  When  assembled  in  their  general  sessions 
for  the  county,  they  have  (besides  their  judicial  author- 
ity) the  power  of  levying  county  rates,  of  introducing 
the  new  constabulary  force,  and  many  more  executive 
functions. 

In  some  of  our  principal  cities 


tratgs  are  appointed  by  the  Home  Secretary  (as  em- 
powered  by  statute)  ;  these  are  usually  men  who  have 
been  regularly  educated  to  the  legal  profession,  and 


332  RISE   AND   PROGRESS 

who  have  had  considerable  practice  and  experience  as 
barristers.  With  this  exception  the  high  local  officers 
whom  we  have  been  considering — the  lords-lieutenant, 
the  sheriffs,  and  the  justices — act  without  pay.  Gen- 
erally speaking,  the  justices  of  the  peace  in  our  large 
towns  are  appointed  under  the  provisions  of  the  Muni- 
cipal Corporations  Acts,  by  commission  from  the 
Crown.  They  need  not  possess  the  qualification  by 
estate  which  is  required  for  county  justices  ;  nor  need 
they  be  on  the  burgess  roll,  but  they  must  be  resident 
within  the  borough,  or  within  seven  mi]es  of  it. 

The  institution  of  justices  of  the  peace  has  been 
justly  eulogised  as  calling  into  social  and  political 
activity~the  unbought  energies  of  our  gentry  and  of 
the  chief  members  of  our  middle  classes,  to  perform 
the  numerous  local  duties  of  provincial  administra- 
tion, which  in  continental  Europe  are  discharged  by 
paid  officers  under  the  direct  control  of  the  central 
government.  It  is  indeed  deeply  to  be  wished  that 
modern  English  gentlemen  who  aspire,  like  their  an- 
cestors, to  be  justices  for  their  counties,  would,  like 
their  ancestors,  make  the  study  of  the  laws  of  their 
country  a  regular  part  of  their  education.* 

The  contrast  as  to  the  centralization  or  localization 
of  administrative  power,,  which  exists  between  England 
and  "other  civilized  countries  (except  the  great  Anglo- 
American  Eepublic,  where  the  old  English  spirit  of  local 
self-government  has  been  preserved  and  even  strength- 
ened), becomes  more  and  more  remarkable,  as  we 
watch  the  modes  in  which  the  numerous  administrative 
duties  (each  petty  in  itself,  but  aiding  to  form  an 
aggregate  of  infinite  importance)  of  social  and  civil 
order  are  discharged.  From  the  Saxon  times  down- 


*  Formerly  it  was  as  much  a  matter  of  course  for  a  young  English 
country  gentleman  to  become  a  student  at  one  of  the  Inns  at  Court,  as 
H  was  for  him  to  study  at  Oxford  or  Cambridge. 


OF   THE  CONSTITUTION.  333 

wards,  each  local  district  among  us  has  in  local  mat- 
ters governed  itself.  We  have  never  known  what  is 
called  an  administrative  hierarchy :  that  is  to  say,  a 
supreme  central  authority  sending  its  prefects,  its 
sub-prefects,  and  other  salaried  officials  into  every 
department,  and  directing  and  performing  hy  them 
every  duty  of  police  and  the  like,  and  professing  to 
provide  through  them  for  every  local  emergency. .  As 
Mr.  Bowyer  well  observes  in  his  Commentaries,  "  Our 
English  civil  polity  is  constructed  on  perfectly  differ- 
ent principles.  Its  main  principle  is  to  engraft  legal 
power  upon  social  power,  and  thus  make  use  of  the 
means  naturally  produced  by  the  social  state  of  the 
people  to  govern  them  by  law.  Now  there  are  J^vo 
species  of  government  into  which  men  living  in  a 
social  state  fall  by  a  kind  of  instinct — the  first  is 
government  by  patriarchal  superiors  or  chiefs,  who  are 
respectable  for  their  personal  qualities  or  their  rank, 
or  powerful  from  their  wealth,  especially  that  which 
consists  in  land;  and  the  second 'is  government  by 
magistrates  elected  by  those  who  are  to  obey  them. 
These  are  the  two  forms  of  government  upon  which 
the  whole  system  of  our  local  and  provincial  polity  is 
constructed.  They  are  both  productive  of  peace  and 
harmony,  because  they  are  agreeable  to  nature,  and 
they  are  also  (under  due  regulation)  highly  favourable 
to  liberty." 

We  have  maintained  these  free  principles  in  our  in- 
ternal government,  while  we  have  matured  a  concentra- 
ted state  government  for  the  general  interests  of  the 
realm.  It  has  been  our  happiness  to  combine  the  system 
of  local  distribution  of  power  in  matters  of  local  impor- 
tance, with  the  system  of  centralization  of  power  in 
matters  of  imperial  and  commonwealth  policy.*  Wo 

*  See  De  Tocqueville  De  la  Democratic  en  AmeYique,  vol.  L  c.  6, 
for  the  distinction  between  Centralisation  gouvernementcde  and  Cenlralisatio* 
administrative. 


334  EISE   AND    PROGKESS 

have  seen  in  an  earlier  part  of  this  work  how  beneficial 
has  been  the  fact  that  we  have  had  one  Parliament  for 
all  England,  and  not  separate  legislative  and  taxing  as- 
semblies for  separate  counties  or  separate  provinces ;  '* 
and  the  fact  that  the  principle  of  local  self-govern- 
ment has  always  prevailed  among  us,  is  at  least 
equally  important.  The  practice  of  our  nation  for 
centuries  establishes  the  rule,  that  except  for  matters 
clearly  of  direct  general  and  imperial  interest,  central- 
ization is  unconstitutional.  I  dwell  on  this  topic, 
because  during  the  last  few  years  the  principle  of 
local  self-government  has  been  menaced,  if  not  im/- 
paired,  and  because  hasty  and  unreflecting  observers 
can  hardly  have  appreciated  its  national  importance. 
On  the  contrary,  we  are  all  apt  to  be  struck  at  first 
sight  with  the  superior  regularity,  harmony,  and  quiet 
vigour  of  action,  which  centralized  administration 
seems  to  secure  in  favourable  instances  abroad ;  while 
the  brawls,  the  jobbing,  and  the  capriciousness  of 
our  own  local  boards  and  popular  officers  force  them- 
selves upon  every  man's  notice  at  home.  But  we 
must  look  deeper,  and  judge  more  comprehensively. 
We  must  not  limit  our  attention  to  capital  cities,  and 
to  the  most  frequented  lines  of  communication  with 
them ;  we  must  not  take  the  temporary  energy  which 
the  strong  will  of  a  single  remarkable  autocrat  may 
diffuse  through  his  officials,  as  a  permanent  and  gen- 
eral proof  of  the  benefits  of  centralization.  We  must 
ascertain  the  state  of  remote  provinces  and  obscure 
towns.  We  must  learn  what  has  been  the  customary 
spirit  and  conduct  of  administrative  functionaries 
under  successive  sovereigns.  We  must  consider  the 
condition  of  more  empires  than  one  at  the  present 
time  as  to  good  or  bad  government,  as  to  venality  or 
integrity,  as  to  spirit  or  apathy  in  local  regimen,  and 

*  See  p.  181,  supra. 


OF   THE   CONSTITUTION.  335 

in  local  public  works.  On  the  other  hand,  let  us  look 
below  the  rough  husk  of  local  self-government  in  our 
own  country.  We  shall  find  superior  fairness  in  de- 
sign, and  superior  honesty  in  execution.  We  shall 
find  infinitely  more  force  than  centralization  ever  could 
produce  ;  we  shall  find  that  force  to  be  far  more  gen- 
eral in  its  operation  ;  and  we  shall  find  it  far  more 
enduring  and  certain,  because  it  springs,  not  from  the 
accidental  idiosyncracy  of  an  individual  ruler,  but 
from  the  national  spirit,  and  from  the  ancestral  habits 
of  a  whole  people.  We  ought  to  reflect  also  upon 
the  pernicious  indirect  effects  which  administrative 
centralization  produces  in  a  State,  and  on  the  advan- 
tages which  we  as  a  nation  derive  from  being  self- 
trained  and  locally  practised  in  the  discharge  of 
political  duties.  We  should  listen  to  the  testimony 
of  intelligent  foreigners,  of  men  who  have  lived  under 
the  plausible  administrative  hierarchy  which  we  have 
looked  at,  and  who  speak  feelingly  as  to  its  effects. 
The  fifth  chapter  of  the  well-known  masterpiece  of 
the  great  French  statesman,  De  TocQueville,  is  devo- 
ted to  the  exposition  of  this  trutn— to  the  distinction 
between  centralization  in  matters  of  imperial  govern- 
ment, and  centralization  in  administrative  matters  of 
local  interest ;  to  demonstrating  the  necessity  of  the 
first,  and  the  pernicious  effects  of  the  second,  not- 
withstanding its  specious  appearances.* 

Professor  Lieber,  a  German  by  birth  and  education, 
but  by  choice  and  adoption  a  citizen  of  the  great 

*  De  notre  temps  nous  voyons  une  puissance,  1'Angleterre,  chez  la- 
qnelle  la  centralisation  gouvernementale  est  portee  &  un  tres-haut  d6gre. 
L'etat  semble  s'y  mouvoir  comme  un  seul  homme  ;  il  souleve  &  sa  volont6 
des  masses  immenses,  rdunit  et  porte  partout  ou  il  le  veut  tout  I'effort  de 
sa  puissance.  L'Angleterre,  qui  a  fait  de  si  grandes  choses  depuis  cin- 

quante  ans,  n'a  pas  de  centralisation  administrative Je  pense 

que  la  centralisation  administrative  n'est  propre  qu'a  enerver  les  peuples 
qui  s'y  soumettent,"  &c.  &c.  The  late  Sir  Robert  Peel  bore  emphatic 
testimony  to  the  value  of  De  Tocqueville's  work  as  a  study  for  the  Eng- 
lish-statesman. 


336  KISE   AND   PROGRESS 

Anglo-American  commonwealth,  in  his  valuable  work 
on  Civil  Liberty  and  Self-government,  after  describing 
the  principles  of  the  American  Congress  and  the 
English  Parliament  as  free  institutions,  expressly 
states,  "  Yet  the  self-government  of  our  country,  or 
of  England,  could  be  considered  by  us  little  more 
than  oil  floating  on  the  surface  of  the  water,  did  it 
consist  only  in  congress  and  the  state  legislatures  with 
us,  and  in  parliament  in  England.  Self-government, 
to  be  of  a  penetrative  character,  requires  the  institu- 
tional self-government  of  the  country  or  district ;  it 
requires  that  every  thing  which,  without  general  in- 
convenience, can  be  left  to  the  circle  to  which  it 
belongs,  be  thus  left  to  its  own  management." 

The  benefits  of  this  local  self-government  are 
earnestly  expounded  in  many  other  parts  of  the  same 
treatise  ;  and  in  another  work  (his  Political  Ethics) 
Professor  Lieber  bears  personal  witness  to  the  contrary 
results  of  the  centralizing  system.  He  says  there, 
that  "  it  is  necessary  to  have  seen  nations,  who  have 
been  forced  for  centuries  to  submit  to  constant  and 
minute  police  interference,  in  order  to  have  any  con- 
ception of  the  degree  to  which  manly  action,  self- 
dependence,  resoluteness,  and  inventiveness  of  proper 
means,  can  be  eradicated  from  a  whole  community. 
On  this  account,  systematic  interference  weakens  gov- 
ernments, instead  of  strengthening  them,  for  in  times 
of  danger,  when  popular  energy  is  necessary,  when 
1  every  man  must  do  his  duty '  or  the  State  is  lost, 
men,  having  forgotten  how  to  act,  look  listlessly  to  the 
government,  not  to  themselves.  The  victories  of 
Napoleon  over  the  many  States  east  and  south  of 
France  were,  in  a  great  measure,  owing  to  this  natural 
course  of  things." 

I  will  cite  only  one  authority  more,  but  it  shall  be 
a  high  one.  Perhaps  no  man  of  modern  times  was 
better  fitted  to  judge  correctly  of  such  matters  than 


OF   THE   CONSTITUTION.  337 

the  German  historian  Niebuhr.  He  was  a  man  (like 
our  own  historian  Grote)  before  whose  eyes  the  annals 
and  institutions  of  almost  every  State,  ancient  or 
modern,  were  made  to  shed  light  on  the  annals  and 
institutions  of  the  rest.  He  was  also  a  man  of  prac- 
tice and  action :  frequently  employed  by  his  own 
government  in  arduous  duties,  and  personally  conver- 
sant with  many  of  the  greatest  men  of  a  fearfully 
great  epoch.  Niebuhr  had  spent  part  of  his  early 
manhood  in  England,  and  knew,  therefore,  the  working 
of  our  system  of  local  government,  as  well  as  the  work- 
mg  of  the  centralization  which  prevailed  in  Prussia  ; 
and  having  these  means  of  knowledge,  he  at  the  close 
of  the  war  in  1815,  in  order  to  induce,  if  possible,  the 
Prussian  Court  to  reorganize  the  Prussian  State  on 
better  principles,  edited  a  work  on  the  "  Internal  Ad- 
ministration of  Great  Britain/'  in  which  it  is  main- 
tained that  "  British  liberty  depends  at  least  as  much 
on  the  local  self-appliances  of  local  government,  as  it 
does  upon  Parliament/'  * 

*  See  Lieber's  account  of  this  work,  in  note  to  p.  278  of  "  Civil  lib- 
erty and  Self-government."  I  feel  that  I  ought  not  to  pass  on  from  this 
part  of  my  subject  without  referring  to  Mr.  Bowyer*s  observations  (Com- 
mentaries, p.  373),  that  "  the  self-governing  spirit  of  our  English  system 
of  internal  polity  explains  that  remarkable  willingness  to  obey,  and  even 
assist,  the  law  which  has  sometimes  excited  the  admiration  of  foreigners 
in  this  country."  1  would  also  gladly  draw  attention  to  the  observations 
of  Mr.  M'Gregor,  in  his  valuable  edition  of  DC  Lolme,  on  the  extent  to 
which  our  system  of  local  self-government  ensures  the  tranquillity  of  the 
country  during  the  ministerial  crises  and  interregna  that  occasionally 
occur  in  our  parliamentary  government  Mr.  M'Gregor  says, — "  Within 
the  last  two  years,  when  for  several  days  after  the  first  resignation  of 
Lord  John  Russell,  and  when  it  was  said,  '  there  was  no  government,'  a 
distinguished  foreigner,  in  conversation  with  the  editor  iu  the  portico  of 
the  Athenaeum  Club,  alluded  to  the  absence  of  excitement  in  such  an 
«vc-nt,  to  the  tranquillity  and  security  which  prevailed  in  the  town  and 
country ;  and  he  then  remarked  '  that  nothing  could  be  more  instructive 
to  .egislators,  statesmen,  and  rulers,  than  the  condition  of  England  at 
that  time.  In  France,'  he  said,  'the  idea  of  the  country  being  without 
a  government  for  a  day  would  create  consternation.  Here  industry  ia 
not  in  the  least  impeded  ;  the  funds  and  public  securities  are  not  disturb- 
ed ;  tranquillity  prevails  everywhere  ;  everybody  is  attending  to  his  par- 

15 


338  BISE  AND   PROGRESS 

I  would  request  the  reader  to  bear  also  in  mind 
on  this  subject  the  observations  which  have  been  made 
in  some  preceding  pages,*  as  to  the  effect  produced 
on  the  national  character  by  the  existence  of  our  nu- 
merous local  bodies  as  deliberative  and  legislative 
assemblies. 

I  have  endeavoured  to  sketch  the  higher  local 
functionaries  in  each  shire,  f  but  the  limits  of  this 
work  forbid  me  from  entering  into  any  detailed  de- 
scription of  the  other  numerous  officers  in  town  and 
country,  who  attencT  to  tne  almost  infinite  variety  of 
daily  political  and  social  duties ;  and  who  are  occu- 


ticular  pursuit ;  ships  arrive  and  depart,  discharge  and  take  on  board 
their  cargoes ;  railway  traffic  is  as  brisk  as  ever ;  public  and  private  car- 
riages roll  on  as  usual ;  prices  are  not  disturbed ;  intercourse  by  your 
steam-packets  and  by  post  goes  on  as  usual ;  and  were  it  not  for  a  lead- 
ing article  in  the  newspapers,  it  would  be  difficult  to  ascertain  that  the 
ministry  had  resigned,  or  whether  a  new  ministry  was  likely  to  be  form- 
ed.' The  truth  is,  that  in  Great  Britain  we  govern  ourselves ;  each  local- 
ity has  its  self-government,  and  every  British  house  is,  in  fact,  a  little 
government  within  itself.  This  is  the  secret  of  the  tranquillity  and  secu- 
rity which  has  so  long  prevailed  hi  our  streets,  and  in  our  towns,  in  our 
fields  and  highways,  while  the  nations  of  continental  Europe  have  been 
plunged  in  the  calamities  of  revolution  and  bloodshed."  While  this  sheet 
is  passing  through  the  press,  a  paper  by  the  French  statesman,  Count 
Montalernbert,  on  the  "  Political  Future  of  England,"  has  been  published, 
hi  which  he  forcibly  exposes  the  evils  which  must  ensue,  if  there  is  any 
increase  of  administrative  centralization,  of  what  he  terms  "  Bureaucratic," 
in  this  country.  Especially  he  shows  its  debasing  influence  on  a  nation 
in  a  point  of  view  which  I  had  omitted  in  the  text.  The  multiplication 
of  salaried  functionaries  creates  a  population  of  place-hunters.  Count 
Montalembert  wisely  warns  us  to  reflect  on  this.  He  says  with  perfect 
truth,  that  "an  universal  thirst  after  salaried  public  employment  is  the 
worst  of  social  maladies.  It  infects  the  whole  body  politic  with  a  venal 
and  servile  humour,  which  in  no  way  excludes,  even  among  those  who 
may  be  the  best  paid,  the  spirit  of  faction  and  anarchy.  It  creates  a 
crowd  of  hungry  suitors,  capable  of  every  excess  to  satisfy  their  longings, 
and  fit  instruments  for  every  base  purpose  as  soon  as  they  are  in  place. 
A  people  of  solliciteurs  is  the  most  despicable  of  all  peoples.  There  is  no 
(gnominy  of  which  it  is  not  capable."  Count  Montalembert  was  partly 
educated  in  England,  and  knows  our  institutions  well. 

*  P.  324,  supra. 

i  The  coroner,  who  was  formerly  a  far  more  important  officer  than 
ncnr,  is  still  elected  by  the  freeholders. 


OF   THE    CONSTITUTION.  339 

pied  in  preserving  the  peace,  in  attending  to  the 
watching  and  lighting,  to  sewage  and  drainage,  to  the 
repair  of  roads  and  bridges,  to  the  relief  of  the  poor, 
and  those  numerous  other  subjects  which  we  are  apt 
to  disregard  on  account  of  their  homely  and  every-day 
character,  but  which  are  of  even  more  importance  to 
our  safety,  comfort,  and  social  well-being,  than  are  the 
more  showy  and  exciting  privileges  and  duties  which 
attach  to  the  parliamentary  elector  and  his  represen- 
tative. Full  information  may  be  gained  from  Mr. 
Archbold's  books  on  the  "  Duties  of  a  Justice  of  the 
Peace,"  and  from  those  on  the  "  Duties  of  a  Parish 
Officer  ;  "  from  Sir  Christopher  Kawlinson's  edition  of 
the  Municipal  Corporations  Act ;  Lawes'  work  on  the 
Public  Health  Acts ;  and  from  Scott's  edition  of  the 
very  important  statute  of  the  last  session,  which  has 
regulated  the  local  self-government  of  the  metropolis 
and  its  vicinity ;  a  vast  district,  or  rather  a  country 
in  itself,  with  a  population  of  two  millions  and  a  half, 
exceeding  the  number  of  the  whole  inhabitants  of 
England  at  the  time  when  the  Great  Charter  was  ob- 
tained. It  is  to  be  generally  observed,  that  with  few 
exceptions,  and  those  quite  modern,  our  local  authori- 
ties, both  in  town  and  country,  receive  no  salary. 
The  rule  of  our  Constitution  is,  that  it  is  a  man's 
duty  to  "  bear  lot "  in  maintaining  good  order  and  in 
upholding  the  social  economy  of  the  district  in  which 
he  resides.  His  fulfilment  of  this  dutj  is  to  be  freely 
giveiL  and  not  sold  to  the  State.  Another  important 
general  observation  is,  that  there  is  nothing  like  uni- 
versal suffrage  in  matters  of  local  political  power. 
The  principle  of  requiring  some  property  qualification 
in  electors,  is  now  as  firmly  established  with  regard  to 
the  appointments  to  local  offices,  as  it  is  with  regard  to 
the  choice  of  parliamentary  representatives.  If  we 
look  both  to  rural  and  to  town  districts,  we  shall  find 
that  it  is  only  ratepayers  (that  is  to  gay,  those  who 


340  KISE   AND   PROGKE8S 

have  some  house  or  other  fixed  holding  in  the  district, 
and  who,  in  proportion  to  the  value  thereof,  contribute 
to  the  local  taxes)  that  can  take  part  in  the  parish 
vestry,*  or  act  as  burgesses  in  the  municipal  corpora- 
tions, f  The  same  may  be  observed  with  regard  to 
the  voters  for  guardians  in  the  poor-law  unions,  $  for 
members  of  the  local  boards  of  health  ;  §  and  it  is,  I 
believe,  universally  applicable  to  the  appointment  of 
the  governing  bodies  in  the  numerous  towns  whose 
self-government  is  regulated  by  the  provisions  of 
special  statutes.  Indeed  the  principle  of  property 
qualification  (of  Timocracy,  to  take  the  term  of  the 
old  Greeks)  is  often  to  be  found  in  stronger  action  in 
local  than  in  imperial  politics ;  as  in  many  parochial 
and  other  district  matters  the  same  individual  enjoys 
a  plurality  of  votes  (not  exceeding  six)  according  to 
the  amount  of  his  property.  ||  With  regard  also  to 
the  holding  of  office  (except  in  those  cases  where 
hired  officers  may  be  appointed),  a  property  qualifica- 
tion is  almost  always  ordained  by  our  law.  It  is  not 
merely  by  residence  in  a  parish,  but  by  also  being 
rated  on  property  worth  41.  a  year  or  upwards,  that 
a  man  is  qualified  for  the  office  of  petty  constable.^]" 
The  churchwarden  must  be  a  ratepayer  and  a  house- 
holder. **  It  is  "  substantial  householders  "ff  who  are 
to  be  overseers.  The  poor-law  guardian,  and  the 
member  of  the  local  board  of  health,  must  be  a  rate- 
payer for  his  district ;  and  the  surveyor  of  highways 


*  Stat.  58  Geo.  HI.  c.  68,  a.  3.  See  Archbold's  "Parish  Officer,"  p. 
408. 

t  See  5  and  6  Will.  IV.  c.  76,  s.  3. 

J  See  4  and  5  Will.  IV.  c.  76,  s.  38. 

§  See  11  and  12  Viet.  c.  63. 

||  See  7  and  8  Viet.  c.  101,  s.  15,  election  of  guardians;  11  and  13 
Viet.  63.  s.  20,  local  boards  of  health ;  58  Geo.  IIL  c.  68,  s.  3,  vestries 

1  5  and  6  Viet.  c.  108,  s.  5. 

**  Archbold's  "  Parish  Officer,"  p.  10. 

ft  43  Eliz.  c.  2,  s.  1. 


OF   THE   CONSTITUTION.  341 

must  hold  rated  property  either  in  the  parish  for  which 
he  acts,  or  the  adjoining  one.  When  we  come  to  the 
town  populations,  we  shall  find  that  every  municipal 
councillor,  or  alderman,  or  mayor,  must  hold  property 
to  a  considerable  amount.  So,  in  the  Act  for  tho 
management  of  the  metropolis,  and  every  town  Act, 
the  possession  of  a  certain  amount  of  local  property  is 
madt  an  indispensable  condition  for  the  exercise  of 
local  political  authority.* 

In  proceeding  to  the  third  head  under  which  Con- 
stitutional functions  have  been  classed,  to  the  exercise 
of  judicial  rights  and  powers,  it  is  to  be  premised  that 
our  Mouse  of  Commons  retains  the  formidable,  though 
now  rarely  used,  weapon  of  impeachment ;  that  the 
peers  are  still  judges  in  cases  of  impeachment ;  and 
a  few  words  ought  to  bemadded  as  to  the  mode  in 
which  the  House  of  IjQrdfl  now  exercise  the  superior 
and  nlHmafft  fljjj^lJRt^  j]]riarMp+inn  which  they  possess 
(with  few  exceptions)  in  all  cases  of  law  and  equity 
from  the  whole  United  Kingdom.  It  might  seem 
perilous  that  a  high  aristocratic  body,  which  is  itself 
one  of  the  branches  of  the  legislature,  should  hold 
such  judicial  authority  in  cases  where  political  inter- 
ests are  involved,  and  party  feelings  interested.  But 
all  objections  of  this  character  must  have  been  re- 
moved by  the  dignified  forbearance  with  which,  for 
many  years  past,  the  great  body  of  the  House  of 
Peers  has  acted  in  judicial  matters.  That  august 
assembly  always  contains  peers  who  fill,  or  have  filled, 
the  highest  stations  in  our  courts  of  law  and  equity. 
It  is  to  these  (commonly  called  the  Law  Lords)  that 
the  other  peers  leave  the  entire  decision  of  the .  cases 
brought  before  the  House.  This  forbearance  has  been 
signally  manifested  during  the  present  reign,  in  a 

*  There  seems  to  be  an  exception  (probably  unintentional)  as  to  mem- 
bers of  the  Central  Metropolitan  Board  of  Works,  18  and  19  Viet.  c.  120, 
t.45. 


342  RISE   AND   PROGRESS 

memorable  case  *  of  the  greatest  political  excitement, 
and  in  which  the  feelings  of  a  great  majority  of  the 
lords  present  would  have  unquestionably  led  them 
to  vote  against  the  judgment  which  they  most  hon- 
ourably permitted  to  go  forth  as  the  judgment  of  the 
House,  as  it  was  the  judgment  of  the  majority  of  tho 
law  lords,  who  alone  voted. 

Passing  on  to  the  general  administration  of  justice, 
and  beginning  with  the  criminal  law  as  first  in  consti- 
tutional importance,f  we  shall  find  that  the  great 
constitutional  principle  of  trial  by  jury  is  still  respect- 
ed so  far  as  regards  all  trials  lor  offences  of  a  graver 
character,  and  which  subject  the  person  convicted  of 
them  to  severe  punishment.  The  judges  of  the  su- 
perior common  law  courts  at  the  assizes,  and  the 
justices  of  the  peace  of  each  county,  and  the  record- 
ers of  the  principal  cities  and  boroughs,  at  their 
respective  sessions,  preside  at  the  trials  of  prisoners 
against  whom  charges  of  this  description  are  prefer- 
red ;%  it  is  still  necessary  that  the  grand  jury  should 
consider  that  the  witnesses  for  the  prosecution  make 
out  a  primd  facie  case  of  guilt  before  the  accused 
party  is  put  upon  his  trial ;  and  the  question  of  fact 
as  to  guilty  or  not  guilty,  is  still  determined  by  the 
verdict  of  the  petty  jury,  the  twelve  good  and  lawful 
men,  who  have  been  the  best  guardians  of  English 
liberty  from  the  earliest  times  of  the  English  nation. 
But  for  upwards  of  a  century,  the  practice  of  expos- 
ing persons  charged  with  minor  offences,  to  trial  and 
"  summary  conviction/'  by  one  or  two  justices  of  the 
peace  has  been  growing  more  and  more  prevalent. 

It  is  deeply  to  be  regretted  that  so  little  heed  has 
oeen  paid  to  the  sage  and  humane  warnings  of  Black- 


*  O'Connell's  case. 

t  See  note  at  p.  183,  supra. 

J  The  most  serious  cases  are  tried  at  the  assizes  exclusively. 


OF   THE   CONSTITUTION.  343 

stone  against  the  increase  of  this  system  of  withdraw- 
ing criminal  charges  from  the  consideration  of  a  jury. 
The  number  of  offences  which  are  now  thus  summa- 
rily triable  in  England  is  no  less  than  three  hundred 
and  sixty-three.*  I  cordially  echo  the  words  of  Mr. 
Warren,  in  his  recent  admirable  abridgment  and  adap- 
tation of  "  Blackstone's  Commentaries/'  respecting 
the  "inroads  on  the  noble  institution  of  trial  by  jury 
which  are  now  being  made  incessantly."  Above  all,  I 
would  draw  attention  to  his  warning,  that  "  it  is  mat- 
ter of  supreme  concern  to  the  country  to  beware  of 
shaking  the  confidence  of  the  humble  classes  of  soci- 
ety in  the  administration  of  criminal  justice,  by  in- 
fringing their  right  to  an  open  and  formal  trial  by 
their  equals,  and  placing  them  at  the  mercy  of,  it 
may  be,  an  interested  or  prejudiced  superior." 

With  regard  to  civil  causes,  in  those  which  are 
carried  on  in  the  superior  courts  of  common  law, 
questions  of  fact  continue  to  be  determined  by  the 
verdict  of  a  jury,  f  and  the  same  tribunal  assesses  the 
amount  of  damages  where  a  wrong  is  proved  or  ad- 
mitted. But  a  very  large  proportion  of  the  civil  legal 
business  of  the  country  is  (and  long  has  been)  carried 
on  in  the  courts  of  equity,  before  the  Lord  Chancellor, 
or  the  other  equlfy^judges  whom  the  Crown  appoints, 
and  who  are  now  more  numerous  and  efficient  than 
formerly  was  the  case.  Sometimes  the  equity  judges 
direct  a  question  of  disputed  facts  to  be  tried  by  a 
jury ;  and  they  now,  sometimes  (by  virtue  of  powers 
recently  conferred  on  them),  hear  the  witnesses  of  the 
conflicting  parties  examined  and  cross-examine\l  in 
open  court.  But,  in  general,  the  testimony  in  equity 


*  See  the  list  in  Archbold's  "  Justice  of  the  Peace,"  at  the  end  of  the 
•econd  volume. 

f  By  one  of  the  late  statutes  for  the  amendment  of  the  law,  parties 
may,  if  they  hoth  please,  try  issues  of  facts  hefore  a  judge  without  a  jury. 
This  has  not  hitherto  been  oiten  done. 


344  EISE    AND   PROQBESS 

proceedings  is  taken  by  the  unsatisfactory  method  of 
written  depositions,  or  by  the  little  better  method  of 
the  witnesses  being  examined,  viva  voce,  privately 
before  an  officer  of  the  court,  who  writes  down  and 
transmits  their  evidence  to  the  judge.  It  would  lead 
me  far  beyond  the  proper  bounds  of  this  treatise  if  1 
were  to  enter  here  into  an  explanation  of  the  distinc- 
tion between  the  jurisdictions  of  the  common  law  and 
equity  tribunals,  or  on  the  attempts  now  made  to 
amalgamate  them.  It  is,  however,  due  to  our  present 
law  reformers,  to  bear  witness  to  their  honourable 
activity  in  sweeping  away  absurd  technicalities,  tedi- 
ous processes,  irrational  subtleties,  and  other  abuses 
of  our  legal  system,  which  for  ages  have  denied  the 
great  constitutional  maxim,  that  Justice  and  Eight 
shall  be  sold,  denied,  or  deferred  to  no  man.  In  this 
field  of  reform, — 

"  Much  has  been  done,  but  more  remains  to  do." 

Our  Ecclesiastical  Courts,  our  Admiralty  Courts, 
our  Bankruptcy  and  other  trfonjials.  would  require 
description  in  a  more  strictly  legal  treatise,  but  may 
be  passed  over  here.  But  attention  must  be  briefly 
drawn  to  the  new  (your^y  r!ni1rtiai  by  which  (with  a 
few  exceptions)  all  civil  cases,  where  the  amount 
claimed  is  not  more  than  20Z.,  must  be  tried  (under 
penalty  of  the  plaintiff's  being  obliged  to  pay  his  own 
costs,  though  successful,  if  he  proceeds  in  the  superior 
court),  and  where  actions  may  be  tried  if  the  claim 
does  not  exceed  5QL  Juries  of  five  are  sometimes 
made  part  of  the  machinery  of  these  tribunals  ;  but 
in  the  great  majority  of  cases  the  county  court  judges 
(appointed  by  the  Chancellor)  decide  in  a  summary 
manner.  There  can  be  no  question  that  these  new 
courts  now  bring  justice  home  to  the  poor  man  in  an 
infinity  of  little  simple  cases,  in  which  it  was  formerly 
practically  denied  him.  How  far  the  extension  of 


OF   THE   CONSTITUTION.  345 

their  authority  is  desirable,  is  a  different  matter.  An 
Englishman  has  a  right  not  only  to  ready  and  cheap 
law,  but  to  good  law ;  without  which  there  cannot  be 
justice,  either  ready  or  slow,  cheap  or  dear.  It  is  by 
increasing  the  activity  and  diminishing  the  cost  of  tho 
best  possible  tribunals,  that  true  law  reform  is  to  be 
effected,  and  not  by  setting  up  new  ones  of  inferior 
quality  in  their  stead. 

2---"We  have  now  observed  the  more  important  parts 
of  our  legal  system  in  which  members  of  the  great 
body  of  the  people  take  part  as  jurors  in  the  admin- 
istration of  justice.  It  is  interesting  to  ascertain  also 
by  what  classes  of  the  people,  and  by  what  number, 
that  privilege  is  exercised.  Here  again  we  find  the 
principle  of  property  qualification  in  full  activity ; 
and  it  is  worth  remarking  that  in  this  branch  of  con- 
stitutional power  the  propriety  of  such  a  limitation  is 
tacitly  admitted  on  all  hands.  The  most  vehement 
partisans  of  universal  suffrage  in  parliamentary  elec- 
tions never  require  that  the  jury  box  should  be  open 
to  all  comers. 

In  early  times  the  qualification  required  fbr  jurors 
was  the  possession  of  freehold  property,*  except  in 
the  boroughs,  where  all  burgesses  were  eligible.  Now 
(with  certain  personal  and  professional  exceptions)  the 
following  persons  are  qualified  to  serve  on  juries  for 
the  trial  of  all  issues,  civil  and  criminal,  in  Her  Maj- 
esty's courts  at  Westminster,  and  at  the  assizes,  and 
on  grand  and  petty  juries  in  the  courts  and  sessions 
of  the  peace  in  the  county,  riding,  or  division  where 
they  respectively  reside. 

1.  Every  man  between  the  age  of  twenty-one  and 
sixty  years  residing  in  England,  having,  in  his  own 
name  or  in  trust  IOL  per  annum,  of  clear  yearly  in- 
come, arising  from  lands  and  tenements,  whether  free- 

*  See  p.  234,  supra. 


346  EISE   AND   PROGRESS 

hold,  copyhold,  customary  tenure,  or  ancient  demesne, 
or  rents  issuing  thereout  in  fee-simple,  fee-tail,  for  his 
own  or  other  person's  life,  or  such  income  or  rents 
Jointly  issuing,  amounting  together  to  the  clear  yearly 
value  of  101. 

2.  Eveiy  man  having  20?.  a  year  clear  from  lands 
or  tenements  held  by  lease  for  twenty-one  years  or 
upwards,  or  for  any  term  determinate  on  any  life  or 
lives. 

3.  Householders  assessed  to  the  poor  rate,  or  to 
the  inhabited  house  duty,  in  the  county  of  Middlesex, 
on  a  value  of  30?. ;  in  any  other  county,  20?. 

In  the  municipal  boroughs  which  have  quarter  ses- 
sions, all  the  burgesses  (that  is  to  say,  all  resident 
ratepayers)  serve  as  jurors. 

The  total  number  of  Englishmen  and  Welshmen 
who  were~on jtheju^jists  in  1853,  was  three  hundred 
and  sixteentEousand  seven  hundred  and  forty-six  for 
the  counties,  and  one  hundred  and  three  thousand  six 
hundred  and  three  for  the  boroughs.  The  parliamen- 
tary paper  from  which  these  numbers  are  taken  is  not 
perfect,  as  some  places  sent  no  returns.  On  the  other 
hand,  a  considerable  number  of  the  borough  jurors 
must  have  also  been  entered  in  the  county  lists  on 
account  of  their  liability  to  serve  at  the  assizes.  Per- 
haps we  may  altogether  safely  estimate  the  total 
number  of  Englishmen  and  Welshmen  qualified  to 
take  part  as  jurors  in  the  administration  of  justice  at 
four  hundred  thousand  ;  a  number  much  less  than 
that  of  the  total  of  the  parliamentary  electors.  But 
it  is  to  be  borne  in  mind  that  members  of  the  clerical, 
military,  naval,  legal,  and  medical  professions,  and 
persons  in  several  other  specified  employments,  and 
all  persons  more  than  sixty  years  of  age,  are  exempted 
from  being  placed  on  the  jury  lists. 

It  may  have  occurred  to  the  reader  of  these  pages, 
that  besides  the  great  power  now  vested  in  the  Crown 


OF   THE   CONSTITUTION.  347 

by  reason  of  the  large  number  of  magistracies  and 
offices  of  every  kind  in  the  internal  administration  of 
the  kingdom,  which  are  filled  by  royal  appointment, 
the  great  increase  of  our  transmarine  empire,  of  our 
colonies,  and  our  Indian  possessions,  has  placed  an 
almost  infinite  mass  of  military  and  naval,  and  also 
of  judicial  and  other  civil  appointments  in  the  gift  of 
and  thereby  created  an  amount  of  influ- 


ence,  which  an  active  sovereign  of  ambitious  views 
and  arbitrary  temperament,  if  unwatched  even  for  a 
short  time  by  parliamentary  control,  might  employ  in 
a  manner  fatal  to  the  national  liberties.  Considera- 
tions of  this  nature  (not,  however,  unmingled  with 
party  motives)  led  a  majority  of  the  House  of  Com- 
mons, in  the  latter  part  of  the  last  century,  to  vote, 
'in  compliance  with  Mr.  Cunning's  motion,  their  cele- 
brated resolution,*  that  "  the  influence  of  the  Crown 
had  increased,  was  increasing,  and  ought  to  be  dimin- 
ished." Whatever  foundation  there  may  have  been 
for  such  an  alarm  in  Dunning'  s  time,  when  the  House 
of  Commons  was  unreformed,  and  when  the  power  of 
the  press,  and,  consequently,  of  public  opinion,  was 
immature,  compared  with  their  present  development, 
no  reflecting  man  would  join  in  any  such  protest 
against  the  predominance  of  royal  authority  now. 
The  constant  dependence  of  the  Crown  upon  Parlia- 
ment vests  this  ample  amount  of  patronage  in  reality 
in  the  hands  of  responsible  ministers,  who  are  always 
subject  to  parliamentary  inquiry  and  animadversion 
as  to  their  use  or  abuse  of  it,  and  who  can  only  retain 
their  position  as  ministers  by  a  parliamentary  majori- 
ty. That  parliamentary  majority  cannot  be  retained 
by  them  long  in  the  House  of  Commons,  if  the  cur- 
rent of  popular  opinion  sets  strongly  and  steadily 
against  them.  The  temper  of  the  nation  may  not  be 

*  6th  April,  1780. 


348  RISE   AND   PROGRESS 

reflected  in  the  House  of  Commons  so  rapidly  or  so 
vividly  as  some  may  desire  ;  but  though  a  temporary 
popular  caprice  may  be  slighted,  a  deep-felt  and  wide- 
spread popular  opinion  must  rule  at  a  general  elec- 
tion ;  and  few  members,  who  know  this  well,  will 
expose  themselves  to  certain  rejection,  by  waiting  for 
the  inevitable  recurrence  of  a  general  election  under 
the  Septennial  Act  before  they  adapt  their  votes  to 
their  constituents'  desires. 

It  might  at  first  sight  seem  that  the  Upper  House 
of  Parliament  was  inaccessible  to  the  agency  oT  JgU^r 
lic  opinion,  or  only  accessible  to  it  by  the  extreme  and 
perilous  mode  of  the  popular  minister  of  the  day 
causing  the  royal  prerogative  of  creating  peers  to  be 
put  suddenly  and  largely  in  force.  But  our  House  of 
Lords  has,  with  dignified  wisdom,  at  all  recent  great 
political  crises,  rendered  such  dangerous  measures  un- 
necessary. The  House  of  Lords,  at  present,  though 
theoretically  co-equal  with  the  House  of  Commons, 
is  notoriously  and  avowedly  the  weakest  of  the  two, 
and  gives  way  when  any  serious  and  deliberate  differ- 
ence of  opinion  takes  place.  All  that  it  now  does, 
and  all  that  it  claims  to  do,  is,  to  check  hasty  legisla- 
tion, and  to  give  an  opportunity  for  an  appeal  to  the 
people  by  a  dissolution  of  parliament.  If  parties  are 
equally,  or  nearly  equally  balanced  in  the  country,  the 
House  of  Lords  can  peremptorily  determine  the  fate 
of  any  measure.  They  are  not  a  mere  second  cham- 
ber to  register  the  edicts  of  the  Commons ;  and  ac- 
cording to  the  nature  of  each  case,  they  may  well  and 
wisely  either  at  once  forego  or  repeat  their  refusal  to 
acquiesce  in  the  measures  sent  up  to  them.  But  on 
great  national  questions,  the  Lords  themselves  own 
that  they  are  bound  ultimately  to  give  way  to  the 
clear  and  deliberate  expression  of  the  national  feeling. 
The  debates  in  the  House  of  Peers  on  the  recent  free- 
trade  measures  have  been  of  great  constitutional  in- 


OF   THE   CONSTITUTION.  349 

terest  in  this  point  of  view.  The  champions,  in  the 
Upper  House,  of  the  landed  aristocracy,  though  thej 
asserted  with  truth  that  they  had  a  majority  of  the 
peers  who  in  their  hearts  were  in  favour  of  the  Corn 
Laws,  never  held  out  the  idea  or  the  hope  that  the 
House  of  Lords  could  permanently  stop  the  free-trade 
movement,  supposing  the  nation  to  be  steadily  re- 
solved on  forwarding  it.  All  that  they  claimed  was, 
an  opportunity  of  taking  the  sense  of  the  people  on 
the  subject  by  rejecting  the  proposal  once,  and  com- 
pelling the  ministers  to  try  a  general  election  of  the 
House  of  Commons.  Lord.  Perby^s^wgr^s  on  this 
subject  are  so  explicit,  that  I  will  quote  a  short  pas- 
sage from  the  speech  of  that  eminent  Conservative 
statesman  in  opposition  to  the  second  reading  of  the 
Corn  Importation  Bill,  May  25th,  1846  : — 

"  My  Lords,  if  I  know  anything  of  the  constitu- 
tional value  of  this  House,  it  is  to  interpose  a  salutary 
obstacle  to  rash  and  inconsiderate  legislation ;  it  is  to 
protect  the  people  from  the  consequences  of  their  own 
imprudence.  It  never  has  been  the  course  of  this 
House  to  resist  a  continued  and  deliberately-expressed 
public  opinion.  Your  Lordships  always  have  bowed, 
and  always  will  tow,  to  the  expression  of  such  an 
opinion ;  but  it  is  yours  to  check  hasty  legislation 
leading  to  irreparable  evils."* 

Public  opinion  is  in  truth  now  the  great  lever  of 
political  action  in  England,  but  with  many  valuable 
checks  and  regulations.  We  are  free,  not  only  from 
royal  but  from  democratic  absolutism.  The  will  of  the 
majority  is  justly  powerful ;  but  it  must  develope  its 
power  in  accordance  with  law,  and  in  obedience  to 
law,  even  when  it  is  proceeding  to  work  a  change  in 
the  law.  Our  liberty  is  Institutional  Liberty,  and  not 
the  licence  of  an  impassioned  multitude,  that  brooks 

*  Hansard,  vol.  Ixxxvi.  p.  1175. 


350  B1SE   AND   PROGRESS 

no  restraint  of  form  or  precedent;  that  strikes,  but 
hears  not;  that  cannot,  or  will  not,  reason  before- 
hand, though  it  often  repents  when  too  late.  Thus, 
too,  our  Constitution  secures  to  a  statesman  time  and 
means  for  distinguishing  between  the  real  voice  of  a 
nation,  and  the  noise  of  the  factious  few  who  some- 
times assume  a  nation's  name.  It  enables  him,  also, 
to  discern  mere  transitory  caprices,  however  wide- 
spread on  the  surface,  from  the  deep  enduring  senti- 
ments of  the  people;  "to  see  one  layer  of  public 
opinion  through  another,  and  act  accordingly."  f 

It  is  this  predominant  yet  wisely-tempered  influ- 
ence of  public  opinion  in  England,  that  gives  an 
mteUe^tu^^n^a^ggj§y^alllfi  to  English  liberty, 
which,  though  AVC  may  mention  it  last,  we  assuredly 
rank  not  as  least  among  the  blessings  of  our  Consti- 
tution. Our  country  is  the  peculiar  domicile  of 
mental  authority.  Among  us,  though  a  man  be 
without  either  seat  in  our  legislature  or  vote  in  its 
selection,  he  may  largely  influence  public  opinion,  and 
as  a  speaker,  or  as  a  writer,  acquire  a  degree  of  moral 
and  political  power,  that  may  be  felt  far  beyond  his 
own  island,  and  long  after  his  own  lifetime.  Freedom 
of  discussion,  and  the  freedom  of  the  press,  are  con- 
stantly claimed  as  peculiar  glories  of  our  Constitu- 
tion ;  and  a  treatise  such  as  the  present  would  be 
palpably  deficient  were  it  to  end  without  some  notice 
of  the  laws  on  these  subjects.  Attempts  to  overawe 
the  legislature  by  riotous  mobs,  under  the  pretence  of 
coming  as  petitioners,  caused  a  statute  against  tumul- 
tuous petitions  to  be  passed  in  Charles  II/s  time, 
which  has  been  already  referred  to.*  And  when, 
under  the  guise  of  meeting  together  to  discuss  public 
matters,  attempts  have  been  made  to  assemble  im- 
mense masses  of  people  (sometimes  armed  with  ofien- 

«  Lieber.  \  P.  269,  supra. 


OF   THE   CONSTITUTION.  35J 

sive  weapons,  and  sometimes  with  partial  military 
organization),  and  by  violent  language  to  excite  them 
to  acts  of  treason  and  breaches  of  the  peace, — when- 
ever this,  or  anything  similar,  has  been  done  or 
attempted,  the  common  law  has  justly  held  all  impli- 
cated in  such  proceedings  to  be  liable  to  punishment 
for  the  obvious  peril  that  they  cause  to  society,  and 
for  the  iniquitous  intimidation  which  such  proceed- 
ings, if  unchecked,  must  exercise  on  the  freedom  of 
opinion  in  others.  But  the  right  of  men  to  meet 
peaceably  and  discuss  public  matters  openly  and  fear- 
lessly, is  "as  undoubted  as  it  is  invaluable."*  It  is 
for  a  jury  to  determine,  if  necessary,  whether  this 
right  has  been  fairly  exercised,  "making  full  allow- 
ance for  the  zeal  of  speakers,  though  they  may  some- 
times exceed  the  just  bounds  of  moderation,"  f  or 
whether  in  the  opinion  of  rational  and  firm  men,  it 
has  been  abused  so  as  to  endanger  the  public  peace, 
and  make  the  commission  of  crime  and  outrage  a 
natural  and  probable  consequence. 

The  freedom  ^of  the.  ,press  in  this  country  cannot 
be  said  to  have  commenced  before  the  reign  of  Wil- 
liam III.  It  was  then  that  the  last  licensing  Act  ex- 
pired. And  even  after  the  withdrawal  of  that  restric- 
tion, and  when  men  were  able  to  print  and  publish 
their  thoughts  without  obtaining  the  "imprimatur" 
of  a  Government  official,  the_law  of  libel  pressed 
heavily  on  writers,  and  still  more  on  newspaper  pro- 
prietors. The  growing  importance  of  the  press,  as  an 
organ  both  for  expressing  and  for  exciting  public 
opinion,  was  felt  and  used  by  all  parties ;  but  men  in 
power,  who  were  most  exposed  to  the  wounds  of  news- 
papei  warfare,  often  sought  eagerly  to  crush  their 

*  See  the  excellent  chapter  on  the  subject  in  Mr.  Wise's  little  book 
on  "  Riots  and  unlawful  assemblies." 

f  See  Chief  Justice  Tindal's  address  to  the  grand  jury  at  the  Stafford 
ipecial  commission  in  1 842,  cited  'n  Mr.  Wise's  book. 


352  RISE  AND   PROGRESS 

assailants  by  putting  in  force  the  criminal  law  against 
libels.  The  judges  felt  naturally  little  predilection  for 
a  press  that  generally  seemed  presumptuous  to  men 
in  authority,  and  which  often  was  most  licentious 
and  calumnious.  They  established  the  doctrine,  that 
to  possess  the  people  with  an  ill  opinion  of  the  Gov- 
ernment was  a  jibel ;  and  they  further  established, 
that  in  a  criminal  proceeding  for  libel,  the  truth  of 
the  matters  stated  was  no  defence.  Jurors  weie  nat- 
urally, under  such  circumstances,  unwilling  to  con- 
vict ;  and  a  controversy  grew  up  as  to  the  province  of 
a  jury  in  a  trial  JbrJibel.  The  courts  sought  to  es- 
tablish the  rule,  that  the  province  of  the  jury  was 
simply  to  determine  whether  the  defendant  published 
the  libel,  and  whether  the  libel  had  the  meaning 
assigned  to  it  in  the  indictment.  But  it  was  con- 
tended by  many  that  the  jury  were  also  at  liberty  to 
consider  whether  that  meaning  was  criminal  or  inno- 
cent, and  whether  the  thing  which  was  said  to  be  a 
libel  was  a  libel  or  not.  This  controversy  was  deter- 
mined in  favour  of  the  more  extended  power  of  the 
jury  by  Mr.  Fox's  Act,  in  the  32nd  year  of  G-eorge 
III.  A  great  protection  was  thereby  given  to  writers 
and  publishers,  against  arbitrary  and  harsh  prosecu- 
tions ;  and  the  benefit  of  it  to  the  public  has  been  am- 
ply proved  by  the  increased  respectability  and  high 
intellectual  merit  of  the  English  press.  But  still  the 
monstrous  restriction  remained,  by  which  a  man  whc 
was  indicted  for  a  libei  was  forbidden  to  show  that 
what  he  had  published  was  true,  even  though  no  un- 
fair malice  had  made  him  publish  a  cruel  tl"*S  as 
sometimes  might  be  the  case.  The  maxim  of  "the 
greater  the  truth  the  greater  the  libel"  continued  long 
to  be  the  stigma  of  the  English  law.  This  has  been 
finally  removed  in  the  present  reign  by  an  Act  which 
was  framed  and  introduced  by  Lord  Campbell,  now 
Chief  Justice  of  England.  By  that  statute  (6  &  7 


OF   THE   CONSTITUTION.  353 

Viet.  c.  96),  on  the  trial  of  any  indictment  or  in- 
formation for  a  defamatory  libel,  the  accused  party, 
having  notified  by  his  plea  the  defence  that  he  is 
about  to  set  up,  may  defend  himself  by  showing  the 
truth  of  the  matters  charged,  and  also  that  it  was 
for  the  public  benefit  that  the  said  matters  charged 
ehould  be  published.  If  he  can  satisfy  a  jury  of  these 
points,  he  is  to  be  acquitted ;  if  not,  he  is  justly  pun- 
ishable. It  would  be  impossible  to  provide  better  for 
the  objects  which  are  stated  in  the  commencement  of 
the  Act, — "  For  more  effectually  securing  the  liberty 
of  the  press,  and  for  better  preventing  abuses  in  ex- 
ercising the  said  liberty."  Lord  Campbell's  Act, 
though  last  in  date,  deserves  to  be  classed  as  not  least 
in  merit  among  the  constitutional  treasures  of  the 
statute-book. 

We  have  now  traced  the  English  Constitution 
from  its  origin ;  and  we  have  watched  the  first  devel- 
opment of  its  principles  at  a  time  when  the  newly- 
formed  English  nation  consisted  of  not  more  than  two 
million  of  human  beings ;  one-half  at  least  of  whom 
were  in  an  abject  state  of  serfdom,  while  the  other 
half,  the  freemen  of  the  land,  the  "liberi  homines" 
of  Magna  Carta,  were  divided  into  proud  and  power- 
ful barons,  each  girt  with  his  band  of  armed  retainers 
and  personal  dependants  ;  into  smaller  landowners, 
equal  in  birth  but  inferior  in  possession  to  the  great 
peers ;  into  a  class  of  still  smaller  owners  of  land, 
our  free  yeomanry,  and  into  citizens  and  burgesses, 
who  were  beginning  to  revive  the  old  Koman  system  of 
municipal  self-government,  and  to  reawaken  the  spirit 
of  commercial  energy  and  enterprise.  First  framed 
in  those  troubled  times,  and  for  that  scanty  and  ill- 
assorted  population,  our  Constitution  has  expanded 
with  the  expanse  of  civilization,  numbers,  and  power ; 
and  while  it  has  preserved  all  its  integral  parts  and  all 
its  primary  attributes,  it  has  become  the  Government 


354  RISE   AND   PKOGRESS 

of  and  for  us,  the  eighteen  millions  of  this  mighty 
English  nation,  whose  language,  laws,  arts,  arms,  and 
institutions  are  overspreading  every  region  of  the 
world.  On  the  blessings  of  that  Government,  on  the 
security  and  order  which  it  guarantees,  and  on  the 
independent  energy  and  freedom  which  it  sanctions 
and  inspires,  it  is  surely  needless  to  dwell  further 
in  addressing  the  men  of  1848,  who  have  witnessd 
the  misery  and  degradation  which  anarchical  violence 
and  despotic  coercion  have  caused  in  other  lands. 
Our  Constitution  must  from  time  to  time  require 
remedial  changes ;  and  at  present  the  anomalies  of 
the  distribution  of  the  suffrage,  and  the  shameful  cor- 
ruption with  which  its  exercise  is  too  often  accompa- 
nied, are  prejjsing  on  our  statesmen's  anxious  attention. 
He,  who  halfsEua'ied  our  Constitution  the  most  deep- 
ly, will  venerate  it  the  most ;  and,  while  he  vigorously 
extirpates  abuses,  and  steadily  works  out  its  vital  law 
of  growth  and  development,  he  will  religiously  guard 
its  primary  institutions  from  the  experiments  of  the 
conceited  theorist  and  the  assaults  of  the  disloyal 
destroyer. 


INDEX. 


ACT  of  Settlement,  294. 

Aids,  94.  124. 

Anglo-Saxon,  chief  element  of  Eng- 
lish, 15 ;  meaning  of  word,  17 ; 
original  homes  of  Anglo-Saxons, 
ib. ;  their  primitive  institutions 
and  character,  18;  land  in  Bri- 
tain, 21 ;  how  far  were  their  con- 
quests wars  of  extermination, 
28-31 ;  their  conversion,  its  civil- 
izing effects,  31 ;  Anglo-Saxon 
institutions  as  matured  in  Eng- 
land, 39-61. 

Appeal  of  felony,  what,  142. 

Appropriation  of  supplies,  293. 

Aristotle's  classification  of  political 
functions,  7,  315. 

Arms,  right  of  the  subject  to,  286, 
and  note. 

Army,  standing,  in  time  of  peace, 
without  consent  of  parliament, 
illegal,  286,  293. 

Arnold,  Dr.,  on  Jury  trials  as  an  in- 
strument of  national  education, 
207. 

Arfauli  super  cartat,  209. 

Attainder,  131,  note ;  hills  of,  228 ; 
writ  of,  273,  note. 

Bail,  133,  note ;  excessive  not  to  be 
required,  287. 

Barons  of  England — force  King 
John  to  grant  the  Great  Charter, 
111;  headed  a  national  move- 
ment and  sought  national  objects, 
115  ;  Lord  Chatham's  eulogium 
on,  136;  meaning  of  term  "Ba- 
ron," 166. 

Bicameral  System,  178 


Bill  of  Rights— its  constitutional 
importance, — 4;  text  .of,  and 
notes,  284,  &c. 

Boroughs,  Saxon,  46 ;  oppressions 
of  after  Norman  Conquest,  93 ; 
first  represented  in  Henry  III.'s 
reign,  180;  electors,  who,  230; 
early  borough  syste.n,  changes 
and  abuses,  233 ;  rotten  boroughs, 
315. 

Britons,  ancient     See  "  Celts  " 

Bushnell's  case,  272. 

Cabinet,  296-327. 

Campbell's  (Lord)  Libel  Act,  its 
constitutional  value,  35. 

Celts — British  Celt*,  their  charac- 
ter, &c.,  24 ;  how  far  romanized, 
25  ;  how  far  did  the  Saxons  ex- 
tirpate or  blend  with  them,  28- 
31. 

Ceorls,  their  social  and  political  po- 
sition in  Saxon  England,  43,  46, 
49. 

Chancellor,  Lord,  327. 

Chancellor  of  the  Exchequer,  327. 

Charles  II. — Important  constitu- 
tional statutes  during  his  reign, 
267-270. 

Charters  of  early  Anglo-Norman 
kings,  92;  of  Henry  L,  106.  Set 
"Magna  Carta" 

Chatham,  Lord,  his  Bible  of  the 
English  Constitution,  4  ;  his  eu- 
logium on  the  barons  who  gain- 
ed the  Great  Charter,  136. 

Church,  civilizing  influence  of,  in 
early  times,  32,  33. 

Commons,  House  of,  origin,   169; 


356 


INDEX. 


knights  of  the  shire,  169-174; 
how  elected,  174,  240;  qualifi- 
cation for,  240;  borough  mem- 
bers, when  first  introduced,  173 ; 
coalesce  with  knights  of  the  shire 
in  one  House,  178 ;  gradnal  in- 
crease of  power  of  House  of  Com- 
mons in  fourteenth  and  fifteenth 
centuries,  236 ;  House  of  Com- 
mons the  preponderant  branch 
of  the  Legislature  after  Charles 
II.'s  restoration,  268 ;  position 
after  revolution  of  1688,  306; 
effect  of  Reform  Bill,  311. 

Confirmatio  Cartarum,  its  constitu- 
tional value,  158. 

Constitution,  English,  meaning  of 
the  term,  2 ;  its  leading  princi- 
ples, 3 ;  its  law  of  progress,  6 ; 
coeval  with  our  nationality,  10, 
12 ;  its  principles  traced  in  Mag- 
na  Carta,  and  the  Confirmatio 
Cartarum,  161 ;  its  progress  dur- 
ing the  fourteenth  and  fifteenth 
centuries,  245 ;  its  state  under 
the  Tudors,  247-249;  rescued 
by  the  Petition  of  Right,  259 ; 
further  secured  by  Bill  of 
Rights,  284 ;  its  adaptation  to 
our  present  state,  342. 

Constitution  of  the  British  Empire, 
322. 

Constitutional  forms,  their  value, 
325. 

Constitutional  morality,  325. 

Convention,  278. 

Copyholds,  89. 

Coroner,  128,  note,  313. 

Council,  the  King's,  174,  298 ;  Pri- 
vy Council,  their  present  power, 
296,  note. 

County  Court,  in  Saxon  times,  44  ; 
after  the  Conquest,  171,  173. 

Crown,  see  "  King." 

Danish  element  of  our  nation,  33 ; 
Danes  first  attack  England,  ib. ; 
Danish  primitive  institutions  and 
character,  34-36;  extent  of  their 


conquests    and    influence    hure, 

37-38. 

Declaration  of  Rights,  279. 
Discussion,  free,  right  of,  317. 
Dispensing  power,  270,  309. 

Education  in  England,  352,  note. 

Elections,  provisions  for  freedom  of, 
229  ;  attempts  of  Crown  in  early 
times  to  influence,  229 ;  of  James 
IL,  270 ;  how  often  held,  302. 

Electors  of  knights  of  the  shire, 
173,  223,  231;  under  Reform 
Bill,  313. 

Electors  in  boroughs,  245 ;  under 
Reform  Bill,  312. 

probable  numbers  in  four- 
teenth century,  242 ;  at  present, 
317. 

Electoral  Franchise,  property  and 
intelligence  to  be  regarded  in  its 
distribution,  317 ;  how  far  now 
accessible,  321. 

English  nation,  its  four  elements, 
13 ;  population  at  time  of  Con 
quest,  63  ;  at  present,  314. 

Escuage,  88,  122. 

Feudal  system,  its  general  charac- 
ter, 69,  72 ;  peculiarities  of,  in 
England,  75,  77 ;  feudal  tenures, 
100-104,  291. 

Freedom  of  the  press,  351,  352;  of 
public  discussion,  352. 

Freehold  tenure,  262. 

German,  main  stream  of  the  Eng- 
lish nations,  16;  German  char- 
acter, 19,  20 ;  their  habits  and 
institutions  as  described  by  Ca»- 
sar  and  Tacitus,  18-21.  See  also 
"  Anglo-Saxons." 

"  Germania"  of  Tacitus,  its  value 
for  both  ancient  and  modern  his- 
tory, 10 ;  quoted,  18,  19. 

Grote,  his  remarks  on  kingship  in 
mediaeval  Europe,  162,  note  ;  on 
Constitutional  Morality,  325. 


INDEX. 


357 


Habeas  Corpus,  137,  note,  184-187, 
262  ;  Habeas  Corpus  Acts,  264, 
271,  cote. 

History,  unity  of,  10. 

Hundreds,  a  primitive  institution 
of  ancient  Germans,  19 ;  of  an- 
cient Danes,  36. 

Hundred  Court,  44. 

Impeachment,  216,  338. 
Institutional  liberty,  325,  note. 

James  II.,  his  aggressions  on  the 
Constitution,  277 ;  his  flight 
from  England,  282. 

John — King  John,  his  evil  charac- 
ter, its  importance  to  our  histo- 
ry, 98, 102  ;  his  losses  and  quar- 
rels, 102,  105 ;  the  national 
rising  against  him,  112;  grants 
the  Great  Charter,  117;  his 
death,  148. 

Judges,  how  appointed  and  re- 
moved before  the  Act  of  Will. 
III.,  269;  made  irremovable 
quamdiu  se  bfne  ffesserint,  by  Act 
of  Settlement,  295. 

Jury,  trial  by,  a  principle  of  the 
Constitution,  4 ;  recognised  in 
the  Great  Charter,  186-200; 
jurors  at  first  witnesses,  186 ; 
gradual  change  in  this  respect, 
187  ;  probable  origin  of  trial  by 
jury,  193,  196,  340  ;  early  pro- 
perty qualification  required  for 
jurors,  228 ;  the  present,  342 ; 
trial  by  jury  how  viewed  in  four- 
teenth century,  229  ;  practice  of 
fining  jurors  for  their  verdicts, 
267 ;  declared  illegal,  t6. 

Justice  not  to  be  sold,  denied,  or 
delayed,  136. 

Justices  of  the  peace,  332,  333. 

Kings,  early  German  ones,  17 ; 
Danish,  34  ;  Anglo-Saxon,  49  ; 
Anglo-Norman,  82 ;  recognised 
in  the  Great  Charter,  160 ;  he- 
reditary kingships,  160,  161; 


kingly  power  in  England  a  limit- 
ed power,  162 ;  kingly  preroga- 
tiyes  in  the  times  of  the  later 
Plantagenets,  239  ;  unconstitu- 
tional pretensions  of  the  Stuarts, 
331—339 ;  general  joy  of  the  na- 
tion when  the  king  was  restored 
in  1660,  267  ;  limitation  of  king- 
ly power  at  revolution  of  1688, 
301 :  end  of  struggle  between 
king  and  people ;  constitutional 
position  of  our  kings  since  then, 

a.  314. 

Labouring  classes,  their  former 
state  in  England,  84 ;  their  pre- 
sent, 308;  change  in  the 
character  of  in  towns,  810. 

Language,  English,  earliest  speci- 
men of,  14. 

Liberty  of  the  press,  316.  Set 
"  Constitutional  Liberty." 

Local  self-government,  323,  329- 
336. 

Ltftd-lieutenant,  329. 

Lords,  origin  of  the  House  of,  186 ; 
advantages  of,  179,  304;  pre- 
sent constitutional  position,  348 ; 
judicial  power,  341.  See  aim 
"  Peers." 

Magna  Carta. — Primary  record  of 
the  Constitution,  3 ;  how  gained, 
115 ;  text  of  John's  Charter 
with  explanatory  notes,  120 ; 
renewed  in  Henry  III.'s  reign, 
148 ;  text  of,  as  confirmed  by 
subsequent  kings,  149-157 ;  prin- 
ciples of  the  Constitution  traced 
in,  160-202. 

Majority,  duties  of  with  regard  to 
the  minority,  325. 

Middle  classes,  increased  power  <tf, 
309,  312. 

Ministers  of  State,  327. 

Minority,  obedience  of  to  majority, 
325 ;  why  this  is  no  degradation 
in  countries  of  institutional  lib* 
erty,  ib.,  note. 


358 


INDEX. 


Morality,  constitutional,  325. 
Municipal.     See  "  Borough  "  and 

"  Local  self-government" 
Mutiny  Act,  293. 

Nationality,  English,  dates  from 
thirteenth  century,  12-14;  mean- 
ing of  the  word,  14. 

Norman  element  of  our  nation,  52  ; 
the  Northmen,  t.  e.  Normans, 
conquer  Neustria,  53;  charac- 
teristics of  the  Normans,  54,  55  ; 
Norman  institutions  before  the 
conquest  of  England,  55 ; 
wretched  state  of  the  peasantry 
of  Normandy,  58 ;  Norman  con- 
quest of  England,  59 ;  extent  of 
changes  caused  here  by  it,  61 ; 
beneficial  to  England,  61. 

O'Connell's  case,  noble  conduct  of 
the  lay  peers  in,  338. 

Parish,  52,  323. 

Parliament,  4,  164,  173;  division 
into  two  Houses,  1 78 ;  growing 
power  of  after  thirteenth  cen- 
tury, 220,  et  seq.;  convened 
and  dissolved  by  king,  238 ;  time 
for  holding,  308 ;  its  imperial 
character,  322.  See  "Com- 
mons," "  Electors,"  "  Peers." 

Pauperism,  amount  of  in  England, 
353. 

Peers,  164 ;  how  summoned  to 
parliament,  169 ;  peerage  in 
England  hereditary,  167 ;  peers, 
how  created  by  king,  168 ;  at- 
tempt to  limit  this,  304. 

Petition  of  Right,  its  constitutional 
importance,  4 ;  when  and  how 
obtained,  255-260;  its  text, 
260-264. 

Pleas  of  the  Crown,  128. 

Political  functions,  how  classified, 
313 ;  how  exercised  in  local  self- 
government,  322. 

Population  in  Saxon  times,  63 ;  in 
John's  time,  68 ;  present  num- 
ber, 314. 


Premier,  326. 

Press,  power  of,  370 ;  liberty  o£ 
317. 

Privy  council,  298. 

Property  qualification,  its  univer- 
sality in  elections  for  local  offices, 
337. 

Protestantism,  its  ascendancy  in 
England,  275. 

Public  meetings,  aptitude  of  tha 
Anglo-American  race  for,  324. 

Public  opinion,  present  political 
power  of,  348,  350. 

Purveyance,  130  note. 

Qualification  for  members  of  par- 
liament, 306;  in  elections  for 
local  offices,  336,  337. 

Reform  BUI,  311. 

Remedial  representation,  48. 

Representative  government,  166, 
171;  in  England,  181.  Set 
"  Commons." 

Restoration,  268. 

Re  volution  of  1688,  280-281,  note; 
not  exclusively  aristocratic,  292, 
note. 

Romans,  characteristics  of  their 
conquests,  25;  Roman  civiliza- 
tion in  Britain,  ib, ;  municipal 
self-government,  ib. 

Scandinavian.     See  "  Danish." 

Self-government  See  "  Local  self- 
government." 

Sheriff's  office  described,  128,  note. 
228,  331. 

Slavery  among  ancient  Germans, 
19 ;  Danes,  35  ;  Anglo-Saxons, 
42;  its  extent  in  England  in 
Anglo-Norman  times.  See  "  Vil- 
leinage." 

Star  Chamber,  248,  257 ;  abolish- 
ed, 291. 

Taxation  without  consent  uncon- 
stitutional, 4,  124,  175,  177, 
259;  practised  by  Charles  Lt 
258  ;  prohibited  by  Petition  of 
Right,  264. 


INDEX. 


359 


Tallages,  97,  264. 

Thanes,  Anglo-Saxon,  42. 

Tenant  in  capite,  82. 

Tenure  in  chivalry,  93;  its  hard- 
ships, 94 ;  abolished,  262. 

Tenure  in  free  socage,  94,  262. 

Tenure  in  villeinage,  95,  268,  note. 

Towns,  Roman,  in  Britain ;  occu- 
pied by  the  Saxons,  34. 

Town  population  formerly  much 
smaller  than  rural ;  now  equal, 
320. 

Townships,  Anglo-Saxon,  42. 

Vestry,  323. 


Villeinage,  its  extent  in  England 
in  early  times,  85  ;  its  incidents, 
86 ;  modes  of  becoming  emanci- 
pated from,  88. 

William  the  Conqueror,  60,  61 ; 
his  severities,  65  ;  his  high  abil- 
ities, 80;  extent  to  which  he 
modified  feudalism  in  England, 
and  permanently  influenced  our 
history,  80-85. 

William  III.  See  "  Revolution  of 
1688." 

Witenagemote,  how  constituted. 
47 ;  its  powers,  ih. 


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